Inheritable legitimate share: Disinheritance and ways to protect it

Abstract

This dissertation provides a comprehensive analysis of the legitimate share within the Spanish legal framework, defined as a structural limit on testamentary freedom that ensures a minimum inheritance portion for specific relatives. The research traces its historical evolution, starting from the absolute freedom of early Roman Law and the emergence of the officium pietatis, through the rigidity of Germanic and Castilian traditions, to the current Civil Code and the diversity of regional (foral) laws, which often offer greater flexibility.

The study examines the principle of intangibility of the legitimate share, both in its quantitative and qualitative aspects, as well as the legal actions for protection (supplement action, and the reduction of testamentary provisions and inofficious donations) which enable forced heirs to defend their rights against infringement. Particular focus is placed on the action of preterition, evaluating the legal consequences of omitting a forced heir depending on whether the omission was intentional or non-intentional (erroneous). Finally, the dissertation addresses the current debate regarding the potential modernization and flexibility of this institution in response to evolving social realities and increased life expectancy.