Legados otorgados a legitimarios. Función, imputación y asunción de la carga en el Derecho español e italiano

The purpose of this study is to analyse, distinguishing all possible cases, the regulation of bequests in favour of the legitimated in Spanish and Italian law, to offer a clear vision and give useful indications when making a will. After a brief analysis of Italian and Spanish legislation, it is made clear that bequests ordered in favour of legitimated beneficiaries raise two different sets of problems: that concerning the relationship between the bequest and the legitimated share (to clarify whether or not there is injury to the legitimated beneficiary) and that concerning the relationship between the bequest and the position of the legitimated heir (to clarify on which persons the burden of the bequest should fall). The combination of these different elements generates a multiplicity of cases that are analysed in detail, with examples also being proposed to clarify the differences that determine one or the other choice. As regards the question of the persons on whom the legacy should fall, the answer offered by Italian and Spanish law is substantially the same, so that in both legal systems three cases can be distinguished according to whether the testator makes the legacy fall on all the heirs (prelegato), or on persons other than the beneficiary, or, finally, on the beneficiary himself. As regards the imputation of the legacy, the answer offered by Spanish and Italian law is partially different. In Italian law, where there is no improvement, the legacy in favour of the legatee can be ordered with or without a waiver of imputation. In Spanish law, on the other hand, limited to bequests ordered in favour of descendants, the possibilities that can be given are wider, since it is necessary to establish whether the legacy is to be imputed to «mejora, legítima corta, o tercio de libre disposición». Four possible cases are thus identified.