Testate and Intestate Division of the Estate

This post talks about the manner of dividing an estate through a will (testate) or without one (intestate.)

Testate

The legitime is the portion of the estate to be given to the compulsory (automatic) heirs. 1/2 of the net estate goes to the compulsory heirs. The other half is called the Free Portion. The surviving spouse inherits from the free portion. What is left after all heirs, including the surviving spouse, get all their shares is called the disposable free portion. This disposable portion can be given by the testator to anybody. These are the shares:

If the survivor is:

1.) Legitimate children: 1/2 of the estate, divided among themselves in equal portions

2.) Legitimate parents: same

3.) Illegitimate parents: same

4.) Surviving spouse: same, but if the marriage was in articulo mortis 1/3 and 1/2 if living together with the deceased but celebrated the marriage in articulo mortis

5.) 1 legitimate child and the surviving spouse: 1/2 for the child and 1/4 for the spouse

6.) 2 or more legitimate children and surviving spouse: 1/2 to the children, to be divided equally and the spouse's share is equal to the share of 1 child

7.) 2 or more legitimate children, the surviving spouse and illegitimate children: 1/2 for the legitimate children (divided equally among them,) spouse gets a share equal to 1 legitimate child's and each illegitimate child gets a share of 1/2 of a legitimate child

8.) Legitimate parents and surviving spouse: parents get 1/2, spouse gets 1/4

9.) Illegitimate parents and surviving spouse: both get 1/4 each, illegitimate parents divide the 1/4 among themselves

10.) Surviving spouse and illegitimate children: both get 1/3 each, but illegitimate children divide the 1/3 among themselves

11.) Legitimate parents, illegitimate children and surviving spouse: parents get 1/2 (to be divided among themselves) spouse gets 1/8 and illegitimate children get 1/4 (also to be divided among themselves)

The remaining free portion after the division can be given by the testator to anybody. Collateral relatives (brothers, sisters, uncles, aunts, nephews and nieces) inherit only if there are no direct relatives. There is an entirely different rule for grandparents and grandchildren.

Intestate

The rules are different. The whole net estate is to be divided among the heirs.

If the survivor is:

1.) Legitimate children, illegitimate children, legitimate parents or surviving spouse only: the whole estate

2.) 1 legitimate child and surviving spouse: 1/2 each

3.) Surviving spouse and 2 or more legitimate children: divide the whole estate between them all in equal portions

4.) 2 or more legitimate children, surviving spouse and illegitimate children: satisfy legitime first, then divide the rest pro rata

5.) Legitimate parents and surviving spouse: 1/2 each

6.) Illegitimate parents and surviving spouse: 1/2 each

7.) Illegitimate children and surviving spouse: 1/2 each, but illegitimate children must divide their share equally among themselves

8.) Legitimate parents, illegitimate children and surviving spouse: parents get 1/2, illegitimate children get 1/4 and surviving spouse gets 1/4

9.) Surviving spouse and collateral relatives: 1/2 for the surviving spouse, 1/2 for the collateral relatives (to be divided equally among each other)

As you can see, it's actually less problematic if there's a will.