In Puerto Rico, no one can leave their children or their spouse completely out of the estate just because they want to. The law reserves a portion for them. That portion is called the legítima (forced share): "the part of the estate that the law reserves for certain persons, called forced heirs" (Art. 1621). The legitimarios (forced heirs) are those protected people.
This guide explains the forced share under the Código Civil de Puerto Rico de 2020 (2020 Civil Code), which applies to people who died on or after November 28, 2020. For earlier deaths, the 1930 Code governs, with different rules (we explain this in 2020 Civil Code vs. 1930 Code).
The basic rule: half and half
If the decedent has forced heirs, they can freely leave half of their property (Art. 1623). The other half is the forced share. The causante is the person who died; the libre disposición half (or "free portion") is the part they can leave to anyone they want: a particular child, a friend, a church, their partner or a nonprofit organization.
The size does not change with the number of forced heirs. Whether there is one child or six, with or without a spouse, the forced share is always half. If the decedent has no forced heirs at all, they can leave everything freely.
This changed in 2020. Under the 1930 Code, the children's forced share was two thirds (one third of strict forced share and one third of "mejora," or betterment) and only one third was free. The 2020 Code eliminated the mejora and reduced the forced share to one half.
Who the forced heirs are
Art. 1622 lists them "in the order and to the extent established by this Code":
- Descendants: children and, in place of a child who has died, that child's own descendants.
- The cónyuge supérstite (the surviving spouse, widow or widower), on equal footing with the children and in full ownership.
- Ascendants (parents, and if there are none, grandparents), but only "in the absence of these," that is, if there are no descendants and no spouse.
Left out are siblings, nephews and nieces, stepchildren and an unmarried partner. None of them has a forced share, although they can receive by will out of the free portion.
How the forced share is divided
The forced share is divided under the same rules as an estate without a will (Art. 1624). In practice:
- Children and spouse: the forced half is divided in equal parts among the children and the spouse. Grandchildren take by right of representation (per stirpes) in place of a child who has died.
- Spouse only, no descendants: the spouse receives the entire forced half. The decedent's parents are not forced heirs in this case.
- Ascendants only: the parents divide the forced half equally; if one has died, it all goes to the other.
| Forced heirs | Forced share of each | Free portion |
|---|---|---|
| Spouse and 1 child | 1/4 of the estate | 1/2 |
| Spouse and 2 children | 1/6 | 1/2 |
| Spouse and 3 children | 1/8 | 1/2 |
| 3 children, no spouse | 1/6 | 1/2 |
| Spouse only | 1/2 | 1/2 |
| Both parents only | 1/4 | 1/2 |
What is it calculated on? On the net estate: the decedent's property valued at the time of the partición (division of the estate), minus debts and charges, plus the value of countable gifts made during life, valued at the time they were made (Art. 1787). If the decedent was married under the sociedad legal de gananciales (community property regime), the spouse's half is separated first, because it is not part of the estate (see community property and inheritance).
Don Tomás leaves a will. Don Tomás died in 2023. He is survived by his wife, Ana, and two children. After separating Ana's community half and paying the debts, his net estate is $240,000.
- Forced share: $240,000 ÷ 2 = $120,000, for three forced heirs. $120,000 ÷ 3 = $40,000 of forced share for each.
- Free portion: $120,000. In his will, Don Tomás left it to his younger daughter, who cared for him during his illness.
- Result: Ana receives $40,000, the older son $40,000 and the younger daughter $160,000 ($40,000 of forced share plus $120,000 from the free portion).
Calculate the forced share and the free portion
Protections for the forced share
It cannot be burdened. The person making the will cannot place conditions, time limits, usufructs or prohibitions on the forced share; if they do, those burdens "are treated as never written" (Art. 1626). They can only impose conditions on what they leave from the free portion.
It cannot be waived in advance. A child cannot give up their future forced share while the parent is alive, or make agreements about it; such an agreement has no effect (Art. 1627).
The spouse can ask for the family home. The surviving spouse can ask to be awarded the family home with priority and, if their rights are not enough to cover it, a lifetime right of habitation, charged to the free portion (Art. 1625). We explain this in rights of the surviving spouse.
Reduction: when gifts or bequests eat into the forced share
No one can give away during life more than they could leave by will (Art. 1312). If the decedent gave away or bequeathed more than the free portion, those gifts are inoficiosas (excessive) and can be reduced until the forced share is made whole.
- Only a forced heir can ask for reduction. Neither the person who received the gift, nor a legatee, nor the decedent's creditors can ask for it or benefit from it (Art. 1791).
- Order: first, whatever the decedent specified is reduced. If they specified nothing, bequests and other provisions of the will are reduced first, proportionally; if that is not enough, gifts are reduced, starting with the most recent (Art. 1792).
- It can be avoided by paying in cash what the forced heir is owed (Art. 1793).
- What is not counted: customary gifts; expenses for food, education and illness of relatives up to the fourth degree; and gifts made 10 years or more before the death (Art. 1788).
Doña Elena and a large gift. Doña Elena, a widow, had two children. Three years before she died, she gave $60,000 to her nephew. In her will she left a $70,000 bequest to her friend Marta. When she died, her net estate was $100,000.
- Estate for calculating the forced share: $100,000 + $60,000 given away = $160,000.
- Forced share: $80,000, that is, $40,000 for each child. Free portion: $80,000.
- The nephew and the friend are not forced heirs, so everything they received counts against the free portion: $60,000 + $70,000 = $130,000. That exceeds the free portion by $50,000.
- The bequest is reduced first: $70,000 − $50,000 = $20,000 for Marta. The gift to the nephew stays intact.
- Of the $100,000 she left, Marta receives $20,000 and the children $80,000, that is, $40,000 each: their full forced share.
The 2020 Code does not set an express deadline for asking for reduction. Some apply the general 4-year period for personal actions (Art. 1203), and others consider it part of the division of the estate. There is no clear case law yet. If you believe a gift affected your forced share, consult an attorney soon.
Preterición: when the will forgets a forced heir
Preterición (omission) happens when the person making the will leaves one or more of their forced heirs out of it, for example, a child born after the will was signed or a child from another relationship (Art. 1628).
The will is not voided. Under the 1930 Code, omission voided the appointment of heirs. Now, the forced share is simply divided among all the forced heirs, including the one left out (Art. 1629). And a forced heir who received less than they are entitled to can ask for the complemento (the difference) (Art. 1630).
Don Julio and the forgotten son. Don Julio, a widower, made a will in 2021 naming as heirs the two children from his second marriage. He did not mention his son from his first marriage. He died in 2025 with a net estate of $180,000.
- Forced share: $90,000 among the three children, $30,000 for each, including the one left out.
- The rest, $150,000, is divided under the will between the two named heirs: $75,000 each.
- Result: the omitted son, $30,000; each of the other two, $75,000.
Art. 1628 also contains a phrase about representation that legal scholars have criticized for its wording. What is certain is what Arts. 1629 and 1630 say. If your case depends on that phrase, seek professional guidance. To challenge other defects in a will, see contesting a will.
Disinheritance is something else. It is the express exclusion of a forced heir for a reason the law allows. We explain it in disinheritance and unworthiness.
Frequently asked questions
Can I leave everything to just one of my children?
Not everything, if you have other forced heirs. You can leave that child the entire free portion (half) plus their forced share. Your other children and your spouse keep their portion of the forced half. See how to make a will.
Do my parents have a forced share if I have no children and no spouse?
Yes. In the absence of descendants and a spouse, ascendants are forced heirs and half of the estate is for them. If you have a spouse, however, your parents are not forced heirs.
Are my siblings entitled to a share?
Not as forced heirs. Siblings only inherit without a will when there are no descendants, spouse or ascendants. With a will, you can leave them whatever you want from the free portion, or everything if you have no forced heirs.
Which forced share applies if the will is from before 2020 and the death was after?
The 2020 Code applies, because what counts is the date of death. Art. 1816 requires respecting what the will provides to the extent the new Code allows, reducing it if necessary. Converting the old "thirds" into the new "halves" is not always simple, and it is wise to review it with an attorney.
Can a will leave the surviving spouse only a usufruct over their forced share?
No. The spouse's forced share is in full ownership, and any usufruct, condition or limitation on the forced share is treated as never written (Art. 1626). The person making the will can impose conditions on what they leave from the free portion.
Sources
- Código Civil de Puerto Rico de 2020 (Ley 55-2020), Arts. 1621–1638, compilación de OGP. bvirtualogp.pr.gov
- Código Civil de Puerto Rico de 2020, Arts. 1312, 1318 y 1787–1794. bvirtualogp.pr.gov
- Código Civil de Puerto Rico de 1930 (derogado), Arts. 737–742. bvirtualogp.pr.gov
- Castrodad García, "Nuevo código, nuevos retos", 91 Rev. Jur. UPR 1083 (2022). derecho.uprrp.edu
- Gumma Benito, "El derecho de representación sui generis del artículo 1628 del nuevo Código Civil", 92 Rev. Jur. UPR (2023). derecho.uprrp.edu
CaudalRelicto.com is an independent guide. It is not Puerto Rico's Departamento de Hacienda, the courts or any government agency. This page is general information, not legal advice from an attorney who knows your case. Names and figures in examples are hypothetical. Found an error? Tell us.
