In a will, a legacy is a gift of personal (movable) property, while a devise is a gift of real (immovable) property, given to a person called a legatee or devisee. Both are specific testamentary gifts, distinct from instituting an heir to a share of the whole estate. Legacies and devises are taken from the free portion of the estate — they cannot impair the legitime reserved for compulsory heirs, and if they do, they are reduced accordingly. They can fail or be revoked in certain cases, such as when the testator later transforms or alienates the specific thing given, when the thing is totally lost, or when the legatee/devisee is incapacitated or predeceases the testator. Understanding whether a gift is a legacy or a devise matters for how it is satisfied and for tax and transfer purposes.
A will can do more than name heirs — it can leave specific gifts. Those gifts have technical names: a legacy and a devise.
The Basic Distinction
- A legacy is a gift of personal (movable) property — e.g., a sum of money, a car, jewelry; and
- A devise is a gift of real (immovable) property — e.g., a specific parcel of land or a house.
The recipient of a legacy is a legatee; the recipient of a devise is a devisee. Both are specific gifts, different from instituting someone as an heir to an aliquot (fractional) share of the whole estate.
Charged Against the Free Portion
Legacies and devises are payable from the free portion of the estate — the part the testator can freely dispose of. They cannot impair the legitime reserved by law for compulsory heirs. If the total of legacies and devises would eat into the legitime, they are reduced (abated) to respect the compulsory heirs' reserved shares.
Order of Payment When the Estate Is Short
If the estate cannot satisfy everything, the law sets a preference among legacies and devises (for example, remuneratory legacies, those declared preferential by the testator, and legacies for support or education receive priority in the order the Civil Code fixes). Others may be reduced pro rata.
When a Legacy or Devise Fails
A specific gift can be revoked or rendered ineffective, for example where:
- The testator transforms the specific thing so it no longer retains its form or denomination;
- The testator alienates (sells or gives away) the thing during their lifetime;
- The thing is totally lost before the testator's death; or
- The legatee/devisee is incapacitated or predeceases the testator.
Why the Distinction Matters
Knowing whether a gift is a legacy (personal) or a devise (real) affects how it is delivered, how title is transferred (a devise of land needs registration steps), and the handling of estate settlement and taxes. Precise drafting avoids confusion among heirs.
Practical Takeaways
- A legacy is a gift of personal property; a devise is a gift of real property;
- Both come from the free portion and cannot impair the legitime — they are reduced if they do;
- They can fail if the thing is transformed, sold, or lost, or if the recipient is incapacitated or predeceases the testator.
Frequently Asked Questions
What is the difference between a legacy and a devise? A legacy is a gift of personal (movable) property, while a devise is a gift of real (immovable) property. The recipient is a legatee or a devisee, respectively.
Can a legacy or devise reduce the legitime? No. Legacies and devises are taken from the free portion and cannot impair the legitime reserved for compulsory heirs. If they would, they are reduced to respect those reserved shares.
When does a legacy or devise fail? For example, when the testator transforms or alienates the specific thing during life, when the thing is totally lost before death, or when the legatee or devisee is incapacitated or predeceases the testator.
Why does the distinction matter? It affects how the gift is delivered, how title is transferred (a devise of land requires registration steps), and the handling of estate settlement and taxes.
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.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.