Quick answer

Preterition is the total omission of a compulsory heir in the direct line from the inheritance, such that the heir receives nothing from the estate, whether in the will or otherwise. Compulsory heirs in the direct line include legitimate children and descendants, and, in the ascending line, legitimate parents and ascendants; the surviving spouse's omission has special treatment. The Civil Code gives preterition a drastic effect: the preterition of a compulsory heir in the direct line shall annul the institution of heirs, but devises and legacies shall be valid insofar as they are not inofficious (that is, insofar as they do not impair the legitime). This means that if a testator completely leaves out, for example, one of their children from the will without mentioning them at all, the entire institution of heirs (the disposition naming who inherits the estate) is annulled, and the estate is generally distributed as if by intestacy (though valid legacies and devises are respected up to the free portion). Preterition must be distinguished from disinheritance: disinheritance is the express deprivation of a compulsory heir of their legitime for a legal cause stated in the will; it is deliberate and, if valid, effective. Preterition, by contrast, is an omission, often unintentional (for example, forgetting a child, or a child born or discovered after the will). A key requirement of preterition is that the omitted heir receives nothing at all; if the heir was given something, even a small amount or by donation during the testator's lifetime, there is no preterition, but at most a completion of the legitime. So preterition, by wholly omitting a compulsory heir in the direct line, can undo a will's distribution and revert the estate to intestate succession.

What Preterition Is

Preterition is the total omission of a compulsory heir in the direct line (e.g., a child) from the inheritance — the heir gets nothing at all, in the will or otherwise.

Its Drastic Effect

Preterition annuls the institution of heirs, so the estate is generally distributed as in intestacy — though valid devises and legacies stand insofar as they are not inofficious (do not impair the legitime).

Preterition vs. Disinheritance

Disinheritance is the express, deliberate deprivation of a compulsory heir for a legal cause stated in the will. Preterition is an omission, often unintentional. If the heir got anything at all, there is no preterition — at most a completion of the legitime.

Practical Takeaways

Frequently Asked Questions

What is preterition? The total omission of a compulsory heir in the direct line from the inheritance, such that the heir receives nothing from the estate, whether in the will or otherwise.

What is the effect of preterition? It annuls the institution of heirs in the will, so the estate is generally distributed as if by intestacy, although valid devises and legacies are respected insofar as they are not inofficious.

How is preterition different from disinheritance? Disinheritance is the express, deliberate deprivation of a compulsory heir of their legitime for a legal cause stated in the will. Preterition is an omission, often unintentional, of a compulsory heir who receives nothing.

Is there preterition if the omitted heir got a small gift? No. A key requirement of preterition is that the heir receives nothing at all. If the heir was given something, even a small amount or a lifetime donation, there is no preterition, but at most a completion of the legitime.

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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