The legitimate strict ¿collective? after Law 8/2021

Abstract

After the reform introduced in the Civil Code by Law 8/2021, article 808, in the first sentence of its new fourth paragraph, literally allows the testator who has legitimate descendants with disabilities "to dispose in their favor of the strict legitimate of the others legitimaries without disabilities.

The aforementioned fourth paragraph continues with a second sentence stating that "In such case, unless otherwise provided by the testator, what is thus received by the beneficiary child will be encumbered with trustee substitution of residue...".

Therefore, unlike the previous wording of 808, whose third paragraph was made up of a single sentence that allowed trustee substitution as the only possible tax on the legitimate strict, currently, the same paragraph, now fourth, is divided in two different sentences in which it allows the testator, first, to dispose of the strict legitima without setting any specific limit in this regard, to, secondly, speak of the trustee substitution of residue on a subsidiary basis, since this will come into play except contrary disposition of the testator.

The reformist spirit of the 2021 legislator regarding the intangibility of the strict legitimate is appreciated not only with the fact that he has opted for the trustee substitution of waste as a type of subsidiary tax that can fall on the strict legitimate, modality of the institution that empowers the trustee with disabilities to dispose of the assets that make up the strict legitima, but also with the fact of exponentially expanding its possible beneficiaries, since until the reform only those who were legally incapacitated could do so (today it could be people with disabilities with a curator representative), and currently it is people with disabilities who can be favored by the testator with the strict legitimate third.

Even though it is true that article 813 of the C.c. establishes that the testator may not deprive the heirs of his legitimacy except in cases expressly determined by law, it is also true that today the C.c. expressly determines in its article 808 that when the testator has a legitimary descendant with a disability, he may, for his benefit, deprive the rest of legitimaries without disabilities of his strict legitimacy.

Should we then consider having a legitimate descendant with a disability as one of the cases expressly determined by law to leave the rest of the heirs without legitimate?

I find it interesting to raise such a possibility, especially considering that there are more than four million Spaniards who can freely deprive their heirs of their legitimacy, since in Aragon, the Basque Country and Navarra, testators may leave their entire inheritance to any of their descendants, whether or not they have a disability.