Legitime laws refer to a collection of different laws in countries with a civil legal system, where every legitimate heir is entitled to a minimum portion of an estate.
Legitime laws can be traced to Roman law, and are also known as the forced share, or the legal right share. Under legitime laws, an heir is entitled to a compulsory portion of the estate unless sufficiently disinherited, if the local laws allow it. As an extreme example, the biological child of a decedent may not be entitled to their share if they murdered the decedent.
Legitime laws are not to be confused with legitimate laws; in this instance, we need to refer to our French: the term comes from the phrase héritier légitime, meaning legitimate heir. The French are also the chief reason why legitime laws exist in the US – or at least, in one part of it.
Federal law in the United States does not have any legitime laws, and neither do most states – with the rare exception of Louisiana.
Under Louisiana law post-1989, any heir under the age of 24, or any heir who is considered permanently unable to take care of themselves is entitled to a forced share of an estate, unless disqualified through disinheritance. This will not change anytime soon, as abolishing forced heirship is forbidden by the Louisiana Constitution.
The reason states in the US are generally uniform in terms of inheritance and do not feature any legitime laws is because American state laws are modeled after English common law. Legitime laws are a holdover from Roman law, and often included in systems modeled after civil law, such as Louisiana.
Community property is another holdover from civil laws – which is why Texas and California, former Spanish colonies, are examples of community property states. The same thing happened in Canada, where every region was structured after English common law except Quebec, which, as an older French colony in the region, adopted Napoleonic French civil law, and utilizes a similar structure to this day.
Understanding Legitime Laws
A legitime law is a legal concept that refers to a mandatory share of an estate that is guaranteed to certain heirs, regardless of the wishes of the deceased or the terms of their will. Legitime laws are also sometimes called forced heirship laws.
Legitime laws are an important part of the civil legal system, which is largely found in Continental Europe, certain parts of Asia (such as the Philippines, Thailand, and Japan), and francophone Africa. These stand in contrast to common law countries (former English colonies), as well as Islamic law and Soviet/Socialist law systems.
Under legitime laws, a certain percentage of an estate must be passed down to certain heirs, such as children or a surviving spouse, regardless of what the deceased’s will may say. The purpose of legitime laws is to protect vulnerable heirs who may be unfairly disinherited by the deceased. For example, if a parent has several children but only leaves their assets to one child in their will, the other children may be left with nothing.
Legitime laws can be complex and vary from country to country. In some cases, they may only apply to certain types of property, such as real estate or family businesses. In other cases, they may apply to all assets in an estate.
In the Philippines, for example, the children of a testator are entitled to half of the deceased’ estate, regardless of what the will says. The surviving spouse is entitled to the share of one child, or one fourth of the estate if only one child survived. If a person dies without any heirs or legal partners, a portion of their estate must go to their parents or closest kin.
Legitime laws are largely irrelevant in the United States, but can help provide greater insight into other legal systems around the world, and serve as an example of the contrast between common law and civil law, and its many subsystems and permutations throughout history. Both Louisiana and Quebec’s original constitutions and existing laws are based on Napoleonic French civil law, for example – and while Louisiana’s laws have adapted to many aspects of common law from around the country, certain things, like greatly limited legitime laws, remain.
Legitime Laws and Community Property
While not exactly the same, community property laws represent one of the chief differences in inheritance laws between the states that include elements of civil law, and completely common law states. Today, only nine states count as community property states. These are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Some states, like Alaska, Kentucky, and Tennessee allow couples to electively co-own property as community property without requiring them to asset this on every title or deed, as in other common law states.
Community property law dictates that the spouse in a relationship owns half of everything earned while married, and when one spouse dies, the other receives the half that belongs to them. Separate property in community property states is anything earned or inherited before marriage, as well as gifts and inheritances made out specifically to an individual.
However, it’s important not to tangle these separate assets into the marriage somehow – such as using an inheritance to buy a house. This “transmutes” the inheritance into community property.
While the remaining states have state law codes based on common law, many states have provisions or even offer spouses the right to claim anywhere from a third to half of a decedent’s estate, regardless of what their will states.
Unlike legitime laws, however, where a testator is forced to divulge a minimum portion of the estate to an heir, states where a spouse may be entitled to a portion of the estate require that the spouse first petitions to the courts for that portion. Furthermore, spouses do not automatically co-own everything – the owner of any property or asset is whoever’s name is on the deed or title.
Whether you live in a country with legitime laws or a state with community property laws, it is important to recognize that individual jurisdictions handle inheritance and property ownership laws very differently, and that what might count in one corner of the world may have no bearing on another – even if the two corners are separated by a fine state line, or an entire ocean. If you wish to formulate an estate plan of your own, it is imperative to seek local legal advice.