Can a son claim a legitimate share?

When we talk about the legitimate share, we refer to the part of the inheritance to which the children are entitled after the death of their parents. In fact, it is a portion of assets that the deceased cannot dispose of freely, even if he or she has made a will. As this is a complex issue in some cases, we would like to explain it here in as much detail as possible.

What is the reserved share?

Within an estate, the reserved portion is the part of the estate that the law reserves for the forced heirs (usually the children). According to the law, the testator cannot freely dispose of this percentage of his or her assets.

It is worth remembering that, when a will is made, inheritances are divided into three parts. In addition to the reserved portion, we must mention the third of improvement, which is used to benefit one of the forced heirs over the others (for example, to reward him for having taken care of his parents during the last years of their lives). The last one is the third of free disposal, which the testator can dispose of without any restriction.

How to claim the reserved share?

It is possible that the will omits one of the children. For example, because the testator considered that it was possible to disinherit him/her (which is not simple in any case, although it is possible) or because he/she had him/her out of wedlock. In any of these cases, or in other cases that you can imagine, the best thing to do is always to reach an agreement with the rest of the heirs with the right to the legitimate inheritance.

The problem is that, on many occasions, this agreement is not possible. If this point is reached, the only alternative is to file a lawsuit requesting the testament to be challenged or a new declaration of heirs, if the deceased did not leave this document with his or her last will and testament.

During the process, it will be necessary to make a valuation of the estate, in which all the assets and debts of the deceased must be reflected. In particular, we are talking about the movable and immovable property owned by the deceased, as well as possible vehicles, bank accounts, investment funds and jewellery.

On the basis of this information, it will be possible to calculate the total legitimate share, which is always one third of the estate. This amount must be divided equally among all children in equal shares. The same applies to the so-called improvement third, provided that the will does not award it to one or more of the descendants.

You should be aware that this process, when carried out through the courts, can be very long and complex. It is also costly, as it may involve the hiring of experts to value the assets, in addition to the costs of a lawyer and solicitor.

Is it possible to claim the reserved share if there is a will?

Yes, of course. In fact, in most cases of claims for the reserved share, the reason is that the testator has not respected the provisions of the law when making the distribution among his children. This is because the freedom to make a will is not absolute, as notaries often point out when the process is entrusted to them.

How much time is there to claim the reserved share?

This is not a question that should worry you too much, since in Spain there is a period of 10 years to claim the legitimate share from the moment of the testator's death. However, there are nuances:

• In the event that the legitimate share was paid, but in an amount lower than that which really corresponded, the claim must be filed within a maximum period of 4 years from the moment the inheritance was divided.
• If one of the children was disinherited and considers that it was not a fair decision in accordance with the law, he/she will also have a maximum period of 4 years to file a claim. This period starts to run from the death of the testator or, failing that, from the time when it became known that he or she left a will and that he or she had disinherited the child.
• In the event that the testator made donations during his lifetime that were detrimental to the reserved portion, the law provides for a period of 5 years from death to file a claim.

In any case, our advice is that, if you want to claim the rightful share of an inheritance because you consider that your rights have been violated, it is best to do so as soon as possible. Bear in mind that the more time that passes, the more difficult it will be to gather the necessary documentation and value the assets, which may even have changed hands.

At this point, we advise you to contact us as soon as possible if you are thinking of claiming the legitimate share of an inheritance. Our lawyers specialising in this type of case will advise you and protect your rights throughout the process.