Descendants
reserved share

Descendants, if there are any, will be the forced heirs. Their reserved share is two thirds of the estate.

To determine the reserved share, not only must the existing assets at the time of death be taken into account, but also all the gifts that have been given by the deceased during his or her lifetime

.-One of these two thirds has to be shared equally by all of the descendants in the first grade: children and children of any child already deceased.

.-The second third ( “mejora”) can be given freely to any descendant, first grade or otherwise (for example to a grandchild, whose parent is alive).

.-The final third does not form part of the Reserved Share, and can be freely disposed of.

So, by way of example, for a testator with two children, the descendants’ reserved share would be 4/6 and the testator can dispose of his or her own assets, by way of gift or in testament:

  • In favour of a child (or a grandchild whose parent has died) 5/6 of the assets, leaving at least 1/6 to the other child ( or grandchild whose parent has died).
  • In favour of a grandchild whose parent is alive, 4/6 of the assets, leaving 1/6 for each of the other children ( or grandchild of a deceased parent).
  • In favour of his or her wife or widower, 2/6 leaving 4/6 to be distributed between the descendants. The widow or widower

    will also have their reserved share in usufructo over the third of the «mejora» ( 2/6 of the estate in this example).

  • In favour of somebody non-related such as a non-married partner or a step-child, the testator can dispose of the final third ( 2/6 in this example)

    These shares can be distributed by the testator either by way of gift during his or her lifetime, or by way of inheritance either naming the inheritors or ordering legacies but the descendants must be mentioned in the testament to avoid the «the preterition» and its important consequences

    The «mejora» between descendants can be given, by way of gifts, during the testator’s lifetime, or in the Last will by way of naming the inheritors to the right of the «tercio de mejora» or by ordering a legacy

    If the testator does not comply with these shares, the disposition of the assets can be reduced by way of the clawback

    Also, as the «mejora» means to reduce the share of the other forced heirs in the global reserved share, it must be carefully expressed:

    If it is by way of gift, the donor must declare expressly that the gift must be considered as a «mejora» to reduce other forced heirs’ reserved share. If not, and the deceased’s estate is not enough to share out the assets to the other heirs to comply with the requirement above, the gift must be reduced by the clawback.

    Even in a case when the gift does not harm the reserved share of the other forced heirs, the beneficiary of the gift will not receive as much as the gift is worth at the moment of the sharing out, as it is deemed that the gift was given as an advance of his or her share in the estate («Colación»)

    To avoid this, the donor must express at the time of making the gift, or later, at the time of making the Last will, that the gift is excluded from «colación». In this case the descendant will receive the gift and also an equal share to the others, so it is deemed to have a «mejora», even in such cases when it reduces the reserved share of the others, as explained above.

    Step-children do not have the right to a reserved share, and the disposition of assets upon death to their benefit must respect the reserved share of possible beneficiaries from the deceased partner.

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