Harmful Donations of Legitimate Share and Action for Reduction

Harmful Donations of Legitimate Share and Action for Reduction

The principle of testamentary freedom stands as a cornerstone in the law of succession, yet it must be balanced with the need to ensure that at least a portion of the estate is allocated to the closest family nucleus. In this regard, the law reserves for a specific category of “successors” a share of the deceased’s assets, known as the legitimate share, which cannot be encroached upon by testamentary dispositions or donations. If the testator makes dispositions that harm the share reserved for the legitimate heirs, such as the spouse and descendants, they have the right to bring legal action to obtain the reinstatement of their legitimate share.

The action for reduction, governed by Article 557, paragraph 1, of the Civil Code, allows legitimate heirs, their heirs, or successors to request the reduction of testamentary dispositions and donations in order to reinstate the legitimate share. To proceed with the reinstatement of the reserved share, it is necessary to reduce the testamentary and donation dispositions deemed harmful and to reconstruct the deceased’s estate at the time of death (relictum). Reduction of testamentary dispositions is carried out proportionally, while donations are reduced starting from the most recent and moving backwards.

This is a personal action that cannot be waived by legitimate heirs, heirs, or successors as long as the testator is alive. The prescription period for exercising this action begins from the date of the opening of the succession. It is important to note that the exercise of the reduction action does not require necessary joinder of parties, either actively or passively, as it aims solely to declare the ineffectiveness or nullity of dispositions against the obligor to restitution.

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