Legitime
Encyclopedia
In Civil law
and Roman law
, the legitime (legitima portio), or forced share
, of a decedent's estate
is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause. The word comes from French
héritier légitime, meaning "rightful heir."
The legitime is usually a statutory
fraction of the decedent's gross estate and passes as joint property to the decedent's next-of-kin in equal undivided shares. The legitime cannot be infringed in order to give a spouse or other beneficiary a greater share of the estate. Therefore, when a decedent has children and leaves a will
, it is unlawful for the testator
to override the legitime by special gift which exhausts the estate or by designating his spouse or other person as sole beneficiary. This is known as preterition when arising by omission and disinheritance when heirs are expressly deprived.
, there is no legitime; the Statute of Wills
, 32 Hen. VIII
c. 1, provided for the unfettered distribution of a decedent's entire estate; a testator
is entitled to disinherit any and all of his children, for any reason and for no reason. Most jurisdictions in the United States
have enacted statutes that prohibit a testator from disinheriting a spouse, or provided that in the event of such a will the spouse may elect to "take against the will"
and claim a statutory share of a decedent's estate. This is done as a substitute for the common law rights of dower
and curtesy
.
, the descendants (alternatively, the parents or grandparents) and the spouse must receive at least 50% of it among themselves.
, the nearest descendants can require a half of their intestacy portion if they are of age or the whole intestacy portion if they are under age. (If a child of the deceased died before him, his children can claim forced share instead of him etc.)
, up until recently, the situation was different. In Louisiana the legitime operated to prevent a parent from wholly disinheriting his children, who were called forced heirs
. If there was one child, that child must receive at least 25% of the decedent's estate. If there were two or more children, they must receive at least 50% of it among themselves. Similar provisions prevented a decedent with living parents from disinheriting them.
Current Louisiana law
provides for a forced share if the decedent's children are under 24 years of age, or are permanently unable to take care of themselves.
, legitim is the right of the issue (including adult issue) to not less than a defined share of the value of the moveable estate of the deceased. The share is one half, if the deceased left no relict (widow or widower), or one third if there was a relict. For example if a testator has two children, and no spouse, and in her/his testament leaves everything to one of them, the other would be entitled to half of the legitim fund, which means a half of a half of the total net value of the moveable estate. (Or half of a third if there were a spouse.) Legitim is also called the Bairn's Pairt, or Part (of gear) (Scots
bairn = child). (See D R Macdonald, Succession (3rd edn 2001); Hilary Hiram, The Scots Law of Succession (2nd edn 2007)).
, the legitime is given to and/or shared by the compulsory heirs of the decedent. This is also called compulsory succession because the law has reserved it for the compulsory heirs and thus, the testator has no power to give it away to anyone of his liking. The compulsory heirs include the children, or descendants (this class includes the adopted children and legitimated children), legitimate or illegitimate; in their default, the legitimate parents, or legitimate ascendants; the surviving spouse, which concurs with the foregoing classes; and the illegitimate parents.
Thus, legitimate children always get one half of the estate, divided equally between them. The surviving spouse gets a share equal to that of a legitimate child, except when there is only one legitimate child, in which case he or she gets one fourth of the estate. Illegitimate children get one half of the share given to legitimate children.
The legitimate parents or ascendants are excluded by legitimate children or descendants, but not by illegitimate children, and get one half of the estate in such cases. The surviving spouse or illegitimate children, when either concur with the parents or ascendants, get one fourth of the estate. If all concur, the share of the surviving spouse is reduced to one eighth of the estate.
The surviving spouse gets one half of the estate when there are no other heirs, and in certain cases, when the marriage is in articulo mortis, he or she gets one third. The surviving spouse also gets one third of the estate when concurring with illegitimate children, who also get the same share. However, the surviving spouse gets one fourth when concurring with illegitimate parents, who also get one fourth of the estate.
The illegitimate children, in default of everyone, gets one half of the estate. The illegitimate parents, who are excluded by everyone except the surviving spouse, also get one half in default of everyone.
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, the legitime (legitima portio), or forced share
Forced heirship
Forced heirship is a form of partible inheritance whereby a deceased's estate is separated into an indefeasible portion, the forced estate, passing to those the deceased is survived by, and a discretionary portion, or free estate, to be freely disposed of by will...
, of a decedent's estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause. The word comes from French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
héritier légitime, meaning "rightful heir."
The legitime is usually a statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
fraction of the decedent's gross estate and passes as joint property to the decedent's next-of-kin in equal undivided shares. The legitime cannot be infringed in order to give a spouse or other beneficiary a greater share of the estate. Therefore, when a decedent has children and leaves a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, it is unlawful for the testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
to override the legitime by special gift which exhausts the estate or by designating his spouse or other person as sole beneficiary. This is known as preterition when arising by omission and disinheritance when heirs are expressly deprived.
Common law
At common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, there is no legitime; the Statute of Wills
Statute of Wills
The Statute of Wills was an Act of the Parliament of England. It made it possible, for the first time in English history, for landholders to determine who would inherit their land upon their death by permitting bequest by will...
, 32 Hen. VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
c. 1, provided for the unfettered distribution of a decedent's entire estate; a testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
is entitled to disinherit any and all of his children, for any reason and for no reason. Most jurisdictions in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
have enacted statutes that prohibit a testator from disinheriting a spouse, or provided that in the event of such a will the spouse may elect to "take against the will"
Elective share
An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will...
and claim a statutory share of a decedent's estate. This is done as a substitute for the common law rights of dower
Dower
Dower or morning gift was a provision accorded by law to a wife for her support in the event that she should survive her husband...
and curtesy
Curtesy
Curtesy tenure is the legal term denoting the life interest which a widower may claim in the lands of his deceased wife, under certain conditions...
.
Brazil
In BrazilBrazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, the descendants (alternatively, the parents or grandparents) and the spouse must receive at least 50% of it among themselves.
Czech Republic
In the Czech RepublicCzech Republic
The Czech Republic is a landlocked country in Central Europe. The country is bordered by Poland to the northeast, Slovakia to the east, Austria to the south, and Germany to the west and northwest....
, the nearest descendants can require a half of their intestacy portion if they are of age or the whole intestacy portion if they are under age. (If a child of the deceased died before him, his children can claim forced share instead of him etc.)
Louisiana
In LouisianaLouisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, up until recently, the situation was different. In Louisiana the legitime operated to prevent a parent from wholly disinheriting his children, who were called forced heirs
Forced heirship
Forced heirship is a form of partible inheritance whereby a deceased's estate is separated into an indefeasible portion, the forced estate, passing to those the deceased is survived by, and a discretionary portion, or free estate, to be freely disposed of by will...
. If there was one child, that child must receive at least 25% of the decedent's estate. If there were two or more children, they must receive at least 50% of it among themselves. Similar provisions prevented a decedent with living parents from disinheriting them.
Current Louisiana law
Louisiana law
Law in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law...
provides for a forced share if the decedent's children are under 24 years of age, or are permanently unable to take care of themselves.
Scotland
In ScotlandScotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, legitim is the right of the issue (including adult issue) to not less than a defined share of the value of the moveable estate of the deceased. The share is one half, if the deceased left no relict (widow or widower), or one third if there was a relict. For example if a testator has two children, and no spouse, and in her/his testament leaves everything to one of them, the other would be entitled to half of the legitim fund, which means a half of a half of the total net value of the moveable estate. (Or half of a third if there were a spouse.) Legitim is also called the Bairn's Pairt, or Part (of gear) (Scots
Scots language
Scots is the Germanic language variety spoken in Lowland Scotland and parts of Ulster . It is sometimes called Lowland Scots to distinguish it from Scottish Gaelic, the Celtic language variety spoken in most of the western Highlands and in the Hebrides.Since there are no universally accepted...
bairn = child). (See D R Macdonald, Succession (3rd edn 2001); Hilary Hiram, The Scots Law of Succession (2nd edn 2007)).
Philippines
Under the Civil Code of the PhilippinesCivil Code of the Philippines
The Civil Code of the Philippines is the product of the codification of private law in the Philippines. It is the general law that governs family and property relations in the Philippines...
, the legitime is given to and/or shared by the compulsory heirs of the decedent. This is also called compulsory succession because the law has reserved it for the compulsory heirs and thus, the testator has no power to give it away to anyone of his liking. The compulsory heirs include the children, or descendants (this class includes the adopted children and legitimated children), legitimate or illegitimate; in their default, the legitimate parents, or legitimate ascendants; the surviving spouse, which concurs with the foregoing classes; and the illegitimate parents.
Thus, legitimate children always get one half of the estate, divided equally between them. The surviving spouse gets a share equal to that of a legitimate child, except when there is only one legitimate child, in which case he or she gets one fourth of the estate. Illegitimate children get one half of the share given to legitimate children.
The legitimate parents or ascendants are excluded by legitimate children or descendants, but not by illegitimate children, and get one half of the estate in such cases. The surviving spouse or illegitimate children, when either concur with the parents or ascendants, get one fourth of the estate. If all concur, the share of the surviving spouse is reduced to one eighth of the estate.
The surviving spouse gets one half of the estate when there are no other heirs, and in certain cases, when the marriage is in articulo mortis, he or she gets one third. The surviving spouse also gets one third of the estate when concurring with illegitimate children, who also get the same share. However, the surviving spouse gets one fourth when concurring with illegitimate parents, who also get one fourth of the estate.
The illegitimate children, in default of everyone, gets one half of the estate. The illegitimate parents, who are excluded by everyone except the surviving spouse, also get one half in default of everyone.
External links
- The Louisiana Civil Code on Successions