Article 615(1) of Chapter 16 of the Laws of Malta dictates;
“The reserved portion is the right on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased.”
The reserved portion is the right in an estate of the deceased which is reserved by law in favour of the descendants and the surviving spouse of the deceased. It is the share out of a person’s estate that he is not free to dispose of. The reserved portion is there to ensure that those close to the testator will always receive a fraction of the estate. However, despite the reserved portion for the surviving spouse and the children, a testator remains free to designate anyone as an heir and can also distribute any part of the estate to anyone as a legacy.
The reserved portion is thus a right of credit which the children or the spouse may enforce against anyone in order to ensure that they get their fair share to the reserved portion.
The reserved portion is due to all children of the deceased whether these where conceived or born in wedlock or not, and whether such children are adopted. The reserved portion is that of 1/3 of the value of the whole estate if such children are not more than 4 in number or 1/2 of the value of the whole estate if such children are five or more. The reserved portion is divided in equal shares among the children who participate in it and where there is only one child, he/she will receive the whole of the previously mentioned third part.
In practice, this translates to the following: If a testator has 3 children, each child is entitled to inherit 1/9th of the parent’s estate. If the testator on the other hand has 5 children, each child is entitled to inherit 1/10th of the estate.
If one of the children passes away before the testator, that child’s share is transferred to their heirs.
When the deceased is survived by children or other descendants, the surviving spouse is entitled to 1/4th of the estate’s value in full ownership. If there are no children, the surviving spouse is entitled to 1/3rd of the estate’s value in ownership.
The surviving spouse shall also have the right to continue residing in the tenement occupied by that spouse at the time of death of the spouse.
When determining the reserved portion due to the surviving spouse, the residence in which they continue to live in is to be excluded from the deceased’s estate, as the surviving spouse has a right to this reserved portion. Furthermore, the tenement subject to the right of habitation is excluded from the estate of the deceased over which the surviving spouse has a reserved portion. The surviving spouses will also have the right of use over any of the furniture in the matrimonial home belonging to the deceased spouse.
The reserved portion is calculated based on the “whole estate” after deducting the estate’s debts and funeral expenses. The estate includes more than just what the testator owned at the time of death; it also encompasses nearly all donations made by the deceased to any person. Therefore, if the testator made a donation to a third party during their lifetime, that donation must also be included in the estate.
Including these donations in the estate ensures that the value of the reserved portion for entitled individuals is proportionately increased. This approach prevents a testator from donating property in a way that could disadvantage the children or the surviving spouse.
A deceased person might donate property in a way that undermines the children or the surviving spouse’s right to their reserved portion. This may occur when a parent transfers immovable property to one child or to a third party. After the parent’s death, the remaining children may not receive their fair share of the reserved portion. In such cases, those entitled to the reserved portion can demand reimbursement from the individual who had received the donation from the testator that affected their right, ensuring that the reserved portion remains intact.
For more information or assistance related to Succession law in Malta please contact Dr Robert Tufigno and Dr Delilah Vella.