The Civil Code Designates So-Called Forced Heirs as Mandatory Beneficiaries

Author: Anastasia Kostenko

Source: niusdiario.es

The testator cannot disinherit the forced heirs, regardless of whether they are mentioned in the will or not. While a person can dispose of their assets freely, without being required to favor any particular individual, this is subject to fulfilling all legal formalities.

Does this mean a person can distribute their inheritance as they wish? Not entirely. Article 807 of the Civil Code designates so-called forced heirs as mandatory beneficiaries of a portion of the testator’s movable and immovable property, regardless of their presence in the will.

The “legítima estricta” guarantees the “right of a person to inherit a minimum share from their parents, spouse, and even grandparents, great-grandparents, and great-grandchildren.” Therefore, the testator cannot exclude forced heirs from the inheritance. If the testator dies without a will, opening an intestate succession, the heirs must be the forced heirs.

Order of Forced Heirs: Mandatory Beneficiaries of a Will

1. Children and Descendants: Includes biological and adopted children and grandchildren, in relation to their parents and ancestors.
2. In the Absence of Descendants: The forced heirs are the parents and ancestors, such as living grandparents.
3. In the Absence of Descendants and Ancestors: The next in line are the surviving spouse.
4. Next in Line: Siblings and the children of siblings.
5. Collateral Relatives up to the Fourth Degree: This includes first cousins, great-nieces, or great-uncles.
6. Finally, the State.

Improvement Share

The “legítima estricta” is divided equally among each heir. Additionally, there is the “tercio de mejora” (improvement share), which can be allocated in the will to favor the forced heirs.

This improvement share can be given to descendants without needing to adhere to the equal parts rule of the “legítima,” so one or several descendants may receive a much larger share of the estate than other forced heirs, provided this is the testator’s intention and is specified in the will. This improvement share is exclusively for the testator’s children and grandchildren.

Disinheritance: What Are the Grounds for Excluding Heirs from the Will?

Disinheritance is the testamentary disposition by which a forced heir is deprived of their right to the legitimate share for a just cause as determined by law. The Civil Code specifies the grounds for disinheriting one or more legitimate heirs as follows:

• Being Convicted: If they have been convicted in court for attempting against the life of the testator, their spouse, descendants, or ancestors.
• False Accusations: If they have falsely accused the testator of a crime.
• Coercion: If they have coerced the testator, through threats, fraud, or violence, to make or alter a will.
• Preventing Testamentary Action: If they have prevented the testator, through threats, fraud, or violence, from making or altering a will, including revoking or hiding a will.

Additionally, Article 853 of the Civil Code regulates the specific grounds for disinheriting children and descendants, while Article 854 covers grounds for disinheriting parents and ancestors, and Article 855 addresses grounds for disinheriting a spouse.