Quick answer

When a person makes a will, they may give specific gifts to particular persons, and these gifts are called legacies and devises. A legacy is a gift of personal property (movable property, such as money, jewelry, or a specific chattel) given in a will, while a devise is a gift of real property (immovable property, such as a parcel of land or a house) given in a will. The persons who receive them are called the legatee (of a legacy) and the devisee (of a devise), as distinguished from an heir, who succeeds to the whole or an aliquot (fractional) portion of the estate. A key limitation is that legacies and devises can be charged only against the free portion of the estate, that is, the part the testator can freely dispose of after setting aside the legitimes reserved by law for the compulsory heirs; a legacy or devise that impairs the legitime of a compulsory heir is inofficious and shall be reduced to the extent necessary to protect the legitime. The thing given must generally belong to the testator (a legacy or devise of a thing belonging to another is void, subject to exceptions, such as when the testator knew it belonged to another and directed its acquisition). The Civil Code provides an order of preference for the payment of legacies and devises when the estate is insufficient to cover all of them: for example, remuneratory legacies or devises, and those declared preferential by the testator, are paid first, and if the estate is not enough, the others are reduced pro rata, with some exceptions. A legacy or devise may be subject to a condition or a term, and it may be revoked or become ineffective in certain cases (such as the loss or alienation of the specific thing by the testator). So legacies (of personal property) and devises (of real property) are specific gifts in a will to particular persons, payable only from the free portion and subject to reduction if they impair the legitime, and to an order of preference when the estate is insufficient.

Legacy vs. Devise

A legacy is a gift of personal property in a will; a devise is a gift of real property. The recipients are the legatee and devisee (as distinct from an heir, who takes the whole or a fraction of the estate).

Limited to the Free Portion

Legacies and devises can be charged only against the free portion — the part disposable after the legitimes of compulsory heirs. One that impairs the legitime is inofficious and reduced. The thing given must generally belong to the testator.

Order of Payment

When the estate is insufficient, the Code sets an order of preference: remuneratory and testator-declared preferential ones are paid first, and the rest are reduced pro rata (with exceptions). A legacy/devise may be conditional or revoked (e.g., by loss or alienation of the thing).

Practical Takeaways

Frequently Asked Questions

What is the difference between a legacy and a devise? A legacy is a gift of personal property (movable property) given in a will, while a devise is a gift of real property (immovable property). The recipients are the legatee and the devisee, respectively.

Can a legacy or devise impair the legitime? No. Legacies and devises can be charged only against the free portion of the estate. One that impairs the legitime of a compulsory heir is inofficious and shall be reduced to the extent necessary to protect the legitime.

What if the estate cannot cover all the legacies and devises? The Civil Code provides an order of preference. Remuneratory legacies or devises and those the testator declared preferential are paid first, and if the estate is insufficient, the others are generally reduced pro rata, with some exceptions.

Can a will give away property that belongs to someone else? Generally no. A legacy or devise of a thing belonging to another is void, subject to exceptions, such as when the testator knew the thing belonged to another and directed that it be acquired for the legatee or devisee.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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