Donate a home to a child during life it is a common practice, but many families are unaware that, by law, this asset usually has to be taken into account when the inheritance is distributed. This is due to the call collationan obligation that forced heirs have to add to the inheritance what they received during life to guarantee an equitable distribution, as stated in article 1035 of the Civil Code.
In practice, this means that if a child received an apartment before death, its value is deducted from what corresponds to the inheritance. That is, it does not return the home, but its share is reduced. However, this general rule has an important exception that many are unaware of and that notaries remember in their explanations.
From the General Council of Notaries they clarify that it is possible to avoid collation. To do this, it is enough for the donor to expressly indicate it in the donation deed. Article 1036 of the Civil Code allows this option, so that the notary can include a “do not collate” clause, which turns that donation into an improvement in favor of that child and prevents it from being subtracted from the inheritance.
What happens when the snack is not applied
When a donation is not submitted to collation, the effect is very relevant in the distribution of the inheritance. The son who has received the property does not have to “compensate” his siblings (or the rest of the forced heirs) for that asset, so you can keep it in its entirety and, in addition, participate in the inheritance as an heir.
On the other hand, if the donation were subject to collation, the Civil Code establishes that the heir who received assets during life must receive less in the inheritance to balance the distribution, as indicated in article 1047. Therefore, the difference between including or not including that clause in the donation can have a significant economic impact.
Furthermore, as stated above, the law also clarifies that donated goods are not returned, but rather what is taken into account is their value at the time of distribution, in accordance with article 1045.
The limit is not to harm the legitimate rights of the other heirs.
It must be taken into account that this possibility of avoiding snacking is not absolute. The Civil Code always protects the legitimate, that is, the minimum part of the inheritance that corresponds by law to forced heirs.
Article 1037 makes it clear that, although a donation is not subject to collation, legitimate donations must be respected in any case. In turn, article 818 establishes that collatable donations made during life are also taken into account to calculate this legitime.
This means that a father can favor a specific child, for example, the one who cares for him the most, by donating an apartment without a meal, but he cannot leave the rest without their minimum legal share. If the donation exceeds legal limits, it could be reduced to ensure that balance.