Therefore, if the testator writes a will or makes donations which deprive his/her next of kin of the rightful inheritance, those individuals have the right to demand a certain amount of money by way of legitim from those who received all or most of the assets of the deceased, whether under a will or through donations. To this effect, those individuals must file a petition for legitim.
The circle of individuals who are entitled to legitim includes the descendants (children, grandchildren, great-grandchildren etc.), the spouse and the parents of the deceased. All of the aforementioned individuals may file a petition for legitim with the court.
The said relatives have the right to claim that the people who received assets from the deceased (whether under a will or via a donation) pay an equivalent of a half of the share of inheritance that they would have received under statutory inheritance. If the entitled person is a minor or is permanently incapacitated, they may claim an equivalent of two-thirds of such a share. It is important to bear in mind that court proceedings in this case will be initiated once a claim for legitim has been filed.
In contrast with a declaration of inheritance, legitim is claimed in contentious proceedings, and the person from whom payment is demanded is the defendant. The entitled relative may only claim money but may not demand, for example, that the court grants him/her a specific asset belonging to the deceased that would correspond to the value of legitim. Of course, this possibility exists if the parties reach a settlement whereby they can freely determine their legal relations.
A petition for legitim must be filed within the period specified by law. An entitled relative will lose his/her right to legitim if the petition for legitim is not received by the court within five years following the announcement of the will at court or, when there is no will, following the death of the deceased.
Legitim is an institution regulated by inheritance law which protects the next of kin of the deceased person. Under inheritance law, people who were closest to the deceased receive the right to claim a specific sum of money, either from the testamentary heirs or from individuals to whom the deceased had made a donation. Legitim is determined as an appropriate fractional part of the value of the estate which would have been inherited by that person under intestate succession regulated in the inheritance law. The value of the legitim also depends on the entitled person’s age and ability to work