The one-third of free disposal in inheritance

The one-third of free disposal in inheritance
Published on: 15 June 2024

Table of contents

The third of free disposition is that which a subject can dispose of at his free will at the time of making a will. By this we mean that it is totally independent of the legitimate third and the improvement third. This, in turn, means that it is the one that is most often contested by the heirs. Here we would like to discuss this topic in depth.

Free disposal meaning

Let us begin by commenting on the concept of free disposition, its meaning. Specifically, this figure, which is perfectly typified in the Civil Code, refers to a third of a testator's assets which he can dispose of at his own will and without the need to grant it to a forced or legitimate heir at the time of his death.

By this we mean that the testator can assign the third of the free disposal of his inheritance to someone with whom he is not related or has no marital relationship. We are talking about, for example, a close friend, an association with which he collaborates or, in general, any natural or legal person he deems appropriate. Furthermore, you may distribute this third in any way you see fit.

The other parts of an inheritance

However, in order to fully understand what free disposal is, it is also necessary to understand what the other parts of an inheritance are. Specifically, these are the following:

The one-third of the reserved portion

According to article 807 of the Civil Code, the reserved portion corresponds to a third of the total inheritance, which the testator cannot freely decide on. This is untouchable and must be assigned to those considered as forced heirs, i.e. to the children and descendants of the deceased, to his parents and ascendants and to his widow or widower.

In this sense, the children and descendants are entitled to receive two thirds of the total inheritance, although it is true that one of them can be 'de mejora', a figure that we will explain below. On the other hand, their parents or ascendants will be entitled to half of the descendants' inheritance if they are still alive.

The case of the widowed spouse is different. He or she is only entitled to the full inheritance if there are no ascendants or descendants of the deceased. If both of them have children, he/she will enjoy the usufruct of the third of improvement. Likewise, in the event that they had no descendants of their own and there were ascendants, they would be entitled to the usufruct of half of the inheritance. The same applies if they had no children in common but the testator had children from a previous relationship.

The third of improvement

This is another third of the inheritance that can be given as an improvement to a forced heir. For example, a testator has to divide the one-third of the reserved portion among his four children, but he can grant the one-third improvement to only one of them. To do so, he must express this clearly or tacitly in the will. The latter formula gives rise to many problems and claims, so it is advisable to be quite explicit in the drafting of the will.

In the event that the testator does not specify that the third of improvement should go to one or more of his forced heirs, it will be understood that it is part of the legitimate, so it will be distributed among them equally.

Frequently asked questions about vested benefits

Now that we know exactly what the free disposition is and we know the other parts that make up an inheritance, it is time to go into more in-depth and detailed questions:

Is it possible to assign the third of free disposition without a will?

The answer is that it is not possible to assign the third of free disposition without a will to a non-forced heir. This is mainly because this is the official document in which the wills of the deceased appear. And if he did not draw it up during his lifetime, it is impossible to know that he wished to grant a third of his assets to non-legitimate natural or legal persons.

How to calculate a third of an inheritance?

Answering the question of how to calculate a third of an inheritance is more difficult than it seems. In particular, the value of the assets must be taken into account at the time of their allocation, i.e. when the will is signed, and not when the deceased dies. Subsequently, computation and imputation calculations have to be made:

  • Computation: the value of the assets is added and the value of the debts existing on them or on other concepts is subtracted. From this operation, the relict estate is obtained, which must be sufficient for the forced heirs to receive the legitimate share that corresponds to them. If this is not the case, and provided that there are improvements and donations of free disposal, they will be subtracted from these to satisfy the part that corresponds to each of them.
  • Imputation: in this phase of the process it is calculated whether the value of the assigned assets is sufficient to satisfy each of the thirds of the inheritance. Again, whenever the donations exceed the available share or are considered inofficious, they must be reduced.

Is it possible to revoke the third of free disposition?

Provided that the testator is still alive, yes. In fact, he/she only has to modify his/her will to assign that third to another natural or legal person or, simply, leave it unassigned so that it becomes part of the legitimate and is received by his/her forced heirs. In addition, the beneficiary also has the possibility of renouncing it if he/she deems it appropriate once the subject has died.

Is the third of free assignment the same in all the autonomous communities?

This figure is included in the regulations of all the Spanish autonomous communities as it is typified in the Civil Code. However, its application differs from one Autonomous Community to another. Therefore, it is advisable to check the autonomous community law of the place of residence and, if you have any doubts, contact a specialised lawyer.

Is it possible to challenge the allocation of this third of the inheritance?

Yes, just like the rest of the will. In fact, it is the third that is most frequently the subject of a claim. For this reason, when drafting the document, it is important to take into account the legal margins established and the amounts that can be distributed. This is the only way to avoid problems after death.

In short, free disposition is a right of any testator, who has the possibility to donate one third of his or her assets to the person, organisation or entity he or she deems appropriate without giving any explanation and in the way he or she sees fit. The only requirement for this is that he/she respects the allocation corresponding to the legitimate and, if it exists, to the improvement to which his/her forced heirs are entitled.

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