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In civil law and Roman law, the legitime, 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 legitime, meaning "rightful heir."

The legitime is usually a fraction of the entire property, which is then shared by the heirs. Where there is the law of legitime, and in the case where the testator has children, it is not lawful for a testator with issue to designate his spouse as sole heir while ignoring his children.

The legitime, common in Continental Law jurisdictions, is a portion of property fixed by law, which a testator with issue is bound to bequeath to his children.

Contents

Common law

At common law, 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.

In certain jurisdictions

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Brazil

In Brazil, the descendants (alternatively, the parents or grandparents) and the spouse must receive at least 50 % of it among themselves.

Czech Republic

In the Czech Republic, 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 Louisiana, 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.

Scotland

In Scotland, legitim refers to the Bairn's Pairt (of gear) (bairn = child).

Philippines

Under the Civil Code of 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.

See also

External links


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