What is a legacy?
A legacy is a testamentary provision by which the testator grants a person —the legatee— one or more specific assets or rights from their estate, without making that person an heir.
Unlike an heir, who succeeds to the whole estate or to a share of it and is liable for inheritance debts, the legatee receives a specific benefit and, as a general rule, is not liable for the charges of the estate.
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Legal regulation
Legacies are regulated in Articles 858 to 891 of the Spanish Civil Code. Article 858 of the Civil Code provides that the testator may charge not only the heir with legacies, but also the legatees, who will only be liable for the charge up to the value of what they have received.
For a legacy to be valid, it must be included in a will and, in principle, the asset bequeathed must belong to the deceased at the time of death.
Types of legacy
There are different types of legacy, depending on the nature of the asset or right granted to the legatee:
- Legacy of a specific and determined thing: this refers to a specific asset owned by the testator, such as an identified property. The legatee acquires ownership from the death of the deceased, in accordance with Article 882 of the Civil Code.
- Legacy of a generic thing: this refers to an undetermined asset within a category, for example, “a vehicle”. Unless otherwise provided, the choice corresponds to the person obliged to deliver it, in accordance with Article 875 of the Civil Code.
- Legacy of a credit or release from debt: the testator bequeaths a credit right held against a third party or forgives a debt that the legatee owed them, in accordance with Article 870 of the Civil Code.
- Legacy of another person’s property: this is valid only if the testator knew that the item was not theirs. In that case, the heir must acquire it in order to deliver it, or pay its value, in accordance with Article 861 of the Civil Code.
- Legacy of an aliquot share: this grants the legatee a share or percentage of the estate, bringing their position closer to that of an heir for partition purposes.
Limits: the forced heirship share
The testator cannot freely dispose of the entire estate through legacies. The forced heirship share of the forced heirs —such as descendants, ascendants and the spouse— must be respected.
If the legacies infringe the forced heirship share, they may be reduced to the extent necessary to protect it, in accordance with Articles 817 and 820 of the Spanish Civil Code.
Acceptance and delivery
The legatee may accept or renounce the legacy, but cannot accept one part and reject another, in accordance with Article 889 of the Civil Code.
Although the legatee acquires ownership of the bequeathed item from the death of the deceased, they must request its delivery from the heir or from the executor authorised to deliver it, in accordance with Article 885 of the Civil Code, and may not take possession of it on their own authority.