La legítima de los descendientes

Abstract

The legitimate system contemplated in the Spanish Common Civil Code (CC) is described in article 806 to 810, both inclusive. Article 808.1º CC contemplates the legitimate of the children and descendants by saying: "The legitimate of the children and descendants constitutes two-thirds of the hereditary assets of the father and mother." Article 806 CC says: "Legitimate is the portion of property that the testator cannot dispose of because the law has reserved it to certain heirs, called for this heirs forced." From this last precept we conclude that the legitimate of the descendants will be paid in assets of the inheritance. This is confirmed by reiterated jurisprudence of the Supreme Court. According to article 808 CC the inheritance is divided into three equal parts, 1/3 of strict legitimate, 1/3 of improvement and 1/3 of free disposition that the testator will award to whoever he wants. Article 807 CC relates who are the groups of legitimaries contemplated in the CC, which are: 1st. Children and descendants with respect to their parents and ancestors. 2nd. In the absence of the above, parents and ancestors with respect to their children and descendants. 3rd. The widower or widow in the manner and measure established by this Code. Articles 809 and 810 of the CC, order the quantification and distribution of assets when the heirs are the ancestors. In Spain, in addition to the Common Civil Code, which is the one that governs most of the country, which coexists simultaneously with six other civil codes, each belonging to the six Autonomous Communities in which each has its own Different Civil Code between each other based on their own historical carry-over. In them, the freedom of disposition of the goods by the testator is greater than in the Common Civil Code, being the legitimate minor ones, going through the highest ones that are of a medium such as Aragon and the Balearic Islands, a third in the Country Basque, a quarter in Galicia and Catalonia and freedom to testify in Navarra and in the lands of Ayala in the Basque Country. As for who the legitimaries are, they also vary from one to another in the seven existing civil codes in our country. Article 149. 1. 8th of the Constitution authorizes the autonomous communities to elaborate and modify their own CC. In view of this provision of the Constitution, the Autonomous Communities are authorized to modify their Civil Codes, and indeed all of them have done so from the entry into force of the 1978 Constitution. In view of the latest trends in the evolution of inheritance law in our European environment, in which we see the law modified with a downward trend and the consequent increase in the freedom to testify on the part of the deceased, as we can see in the recent modifications of the law of successions in Germany and Austria in 2010 and 2017 respectively. In both Germany and Austria, the legitimate is a credit right that the heirs have against the heirs of the deceased. For this reason, the legitimate as "pars valoris" does not confer on the heirs any right to the assets of the inheritance. The right to the legitimate is born at the moment of the death of the deceased and constitutes a debt of the inheritance. The amount of the legitimate depends on the assets of the inheritance and the hypothetical legal quota of the heir, since the legitimate always amounts to half of that hypothetical legal quota ($ 2303 BGB and $ 759 ABGB).