The reserved share is a statutory restriction on the freedom to make dispositions upon death, established for the benefit of certain persons entitled to a reserved share.
The nature and extent of the rights of those entitled to a reserved share, as well as the persons who enjoy that status, differ, sometimes very significantly, from one legal system to another.
Spain’s plural system of civil laws provides a good illustration:
Civil Code: The forced heirs are the children and descendants; failing them, the parents and ascendants; and the surviving spouse, in the form and to the extent provided by law. The reserved share of children and descendants is two thirds of the estate, although one of those two thirds may be allocated by way of improvement to one or more of the children or descendants. The reserved share of parents or ascendants is one half of the estate, reduced to one third where there is a surviving spouse. A surviving spouse who is not legally or de facto separated is entitled to the usufruct of the third set aside for improvement where there are descendants, of one half of the estate where there are ascendants, and of two thirds where there are neither descendants nor ascendants.
Aragon: The only persons entitled to a reserved share are the descendants of the deceased, of any degree. The collective reserved share is one half of the estate and may be distributed, equally or unequally, among all or several of the descendants, or allocated to one descendant alone.
Balearic Islands: In Mallorca and Menorca, the persons entitled to a reserved share are the children and, in the cases provided by law, their descendants; failing them, the parents; and also the surviving spouse. The reserved share of the descendants is one third of the estate if there are four or fewer of them, and one half if there are more than four. The reserved share of the parents is one quarter of the estate. The reserved share of the surviving spouse is the usufruct of one half of the estate where there are descendants, of two thirds where there are parents and, in all other cases, a universal usufruct.
In Ibiza and Formentera, the persons entitled to a reserved share are the children and descendants and, failing them, the parents. The reserved share of the descendants is one third of the estate if there are four or fewer of them, and one half if there are more than four. The reserved share of the parents is one half of the estate, reduced to one third where there is a surviving spouse.
Catalonia: The persons entitled to a reserved share are the children of the deceased and, in the cases provided by law, their descendants by right of representation. If the deceased has no surviving descendants, the parents are entitled to the reserved share. The aggregate amount of the reserved share is one quarter of the calculation base established by law.
Galicia: The persons entitled to a reserved share are the children and the descendants of children who predeceased the deceased, were lawfully disinherited or are unworthy to inherit, as well as the surviving spouse who is not legally or de facto separated and, on the terms laid down by law, the surviving member of a de facto partnership treated as equivalent to marriage. The reserved share of the descendants is one quarter of the value of the estate. The reserved share of the surviving spouse or of the surviving partner in such a partnership consists of a life usufruct of one quarter of the estate where there are descendants and of one half where there are none.
Navarre: The persons entitled to a reserved share are the children and, in the absence of any one of them, their respective descendants of the nearest degree. The Navarrese reserved share is purely formal in nature, carries no enforceable economic entitlement and does not confer the status of heir. Traditionally, it consisted of the allocation of five feble or carline sueldos in respect of movable property and one robada of land in the common lands in respect of immovable property; today it is sufficient to attribute the “Navarrese reserved share”, using that expression or another similar one, on the terms laid down by law.
Basque Country: The persons entitled to a reserved share are the children or descendants of any degree and the surviving spouse or surviving member of a de facto partnership in respect of his or her usufructuary share. The reserved share of the descendants is one third of the estate; the deceased may choose one or more of them and exclude the others, freely distributing the reserved share among those selected. The surviving spouse or surviving member of a de facto partnership is entitled to the usufruct of one half of the deceased’s assets where there are descendants and to the usufruct of two thirds in the absence of descendants. These rules are without prejudice to the special ancestral-property rules (troncalidad) applicable in certain territories and to the freedom of testation specific to the Ayala Valley.
