Argentinian Succession law is based upon the obligations towards family, and imposes therefore strict limitations on individual’’s freedom of testation. Freedom of testation is strongly curtailed, arguably, to protect family members. Argentina has, like France and Spain, a “réserve” (“legítima hereditaria,”, legal portion), this is a portion of the estate of the deceased cannot be disposed of by a will. To protect the legal portion even the gifts advanced to the legal heirs while the defunct was alive must be brought to the inheritance to ensure an equal share of the heirs. Even if in the new Civil and Commercial Code (2015, from now on CCC) has lowered the legal portion for family members, they are still high compared to other similar legal systems. s. Further, the new Civil and Commercial Code, has removed the right of the testator to disinherit their heirs
Article 2444- Legitimate
Have a legitimate portion of which they cannot be deprived by will or by acts of disposition inter vivos gratuitously, the descendents, the ascendents and the spouse.
Available Portion
The available portion is that percentage of the inheritance that, in the case of legitimaries, is not reached by the legitim and its protective effects; or, in other words, implies a part that the individual can dispose of freely, either through acts gratuitously or through testamentary dispositions.
This available portion represents the percentage of testamentary freedom that our law recognizes in cases that there are legitimate heirs, because it is necessary to clarify that, in the case of no legitimaries, the entire inheritance is available
If we want to know the part of free disposition, we must first calculate the global legitimate. This calculate the result of the net assets of the estate, after determinates it (gross assets minus the debts of the deceased) and adding the donations made by the deceased. In the case of descendants, the legitimate is 2/3 (two-thrids); and if they are both ascendants and surviving spouse, it will be 1/2 (a half). Thus, the freely available portion in the first case will be 1/3 (one-thrid), and for the second case, 1/2.
In case of concurrence of heirs with different legitimate shares, the greater absorbs the lesser.
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