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Freedom of Testation

Basically what this legal phrase means is the unfettered ability of anyone to make a will deciding exactly who will inherit his or her estate. The freedom is great in this country and in most American states but much less common in Europe and other jurisdictions where Roman law has had more influence on the development of legal systems. Even here the courts have generously interpreted the Inheritance Family Provision Act to enable the disinherited to make successful claims.

An example of a country with a very different approach is Spain where they have the concept of “the legitimate portion”. This is a portion of the estate to which the deceased’s spouse and children (or in their absence the deceased’s parents) are entitled unless that legitimate portion has already been passed to them before death. The legitimate portion is prescribed by law and prevails even against the provisions of any will.

Currently in Spain the proportions of the legitimate portion are:

  • The legitimate portion of children is two thirds with one third divided equally among all the children with the remaining third to be shared among them in the proportion determined by the testator at his or her discretion;
  • The legitimate portion of the spouse is one third of the estate and where there are no children or parents the spouse’s legal portion is two thirds;
  • Where there are no children or remoter issue the parents will be entitled to a legitimate portion consisting of one half of the estate if there is no surviving spouse or one third of the estate if there is a surviving spouse. For the purposes of the legitimate portion there is no distinction between legitimate, illegitimate or adopted children or between older children or younger children.

This is a simplification of the position but, here at Probaters, we have a consultant who is qualified in both English and Spanish law, so we encourage executors or administrators who are dealing with an estate, with a Spanish component, to contact us for further advice.

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