Part of the inheritance was given away before death: what Chilean law lets the other heirs do

Short answer: in Chile a parent cannot give everything away and leave the rest of the family with nothing. Half of the estate belongs by law to the children, the surviving spouse or civil partner and, in some cases, the parents of the deceased. Gifts made during life do not escape that rule: when the estate is calculated they are added back on paper. A gift to one child is treated as an advance on that child's share. A gift to someone outside the family that eats into the others' shares can be clawed back, starting with the most recent gift.

Who the law protects

Chilean law calls them legitimarios, forced heirs, and the list is short. Article 1182 of the Civil Code names the children, personally or represented by their descendants, the ascendants, and the surviving spouse. The civil union law added the surviving civil partner, who inherits and is a forced heir in the same way as a spouse, provided the civil union was still in force when the inheritance opened.

Two exclusions are written into the same article. Parents whose paternity or maternity was established by a court against their opposition are not forced heirs, and neither is the spouse whose fault gave rise to a judicial separation. Among the forced heirs, the ordinary rules of intestate succession decide who takes and who is excluded: children, for example, exclude everyone except a surviving spouse, who shares with them.

If the question is not a gift but an estate that was never processed at all, the starting point is the estate procedure step by step.

How the estate is split when there are forced heirs

Article 1184 does the arithmetic. First the general deductions are taken out of the estate: the costs of opening the succession, the debts of the deceased, taxes that burden the whole estate and maintenance owed by law. What remains is then divided into four quarters.

If the deceased did not use the quarter for improvements or the free quarter, those portions do not disappear: they swell the forced shares. That is why, in a family where nobody made a will and nobody received anything in life, the children and the spouse end up sharing everything.

A gift to one child counts as an advance on that child's share

This is the rule that settles most family disputes, and it is less known than it should be. Article 1185 provides that, to compute the quarters, every gift made to a forced heir by way of their share or of an improvement is added back to the net estate, whether the gift was revocable or irrevocable. The thing given is valued in the state it was in when it was handed over, with its value prudently updated to the date the succession opened.

Then comes the imputation. Article 1198 says that every gift made to someone who was already a forced heir is charged against their forced share, unless the will, the deed of gift or a later authentic act says it was given as an improvement. If what the child received exceeds their forced share, the excess is charged to the quarter for improvements and then to the free quarter. If even that is not enough, the shares are reduced proportionally, and the child who received more than their due has to make up the difference, in money or by returning property.

In practice: a house given to one child during life is not lost to the others. It goes back into the calculation at its updated value, it is charged against that child's share, and the other heirs receive the equivalent out of what is left. Only if the estate cannot cover it does the question of the child paying back arise. None of this happens by itself, though: it has to be raised in the partition of the estate, which we explain in partition proceedings.

What does not count

Not every transfer between parent and child is an advance on the inheritance. The Code leaves out three things expressly.

• Education. Expenses for the education of a descendant are not counted for the forced shares or either quarter, even if the parent said they should be.
• Wedding gifts and customary presents. Presents given to a descendant on their marriage and other customary gifts are left out of the imputation.
• Moderate gifts. Moderate gifts authorised by custom on certain days and occasions, and small manual gifts, are not treated as gifts at all for this purpose.

Payments made to settle a child's debts are different: they are charged to that child's share, but only to the extent they actually served to pay the debts, and the parent could declare them to be an improvement instead.

A gift to someone outside the family: the clawback action

When the property went to someone who is not a forced heir, article 1186 applies. If the person had forced heirs at the time and the gifts to outsiders, added together, exceed a quarter of the sum of those gifts plus the estate as recalculated, the forced heirs are entitled to have the excess added back as well.

Article 1187 gives the remedy. If the excess is so large that it not only absorbs the freely disposable part but also eats into the forced shares or the quarter for improvements, the forced heirs may demand restitution of what was excessively given. They proceed against the recipients in reverse order of the dates of the gifts, starting with the most recent, and the insolvency of one recipient does not burden the others. Chilean lawyers call this the acción de inoficiosa donación.

The deadline question

Here precision matters more than reassurance. The Civil Code does not set a specific period for the clawback action of article 1187. The general rule of the Code is that ordinary actions prescribe in five years, counted from when the obligation became due, but whether and how that rule applies to this particular action is not settled in any text we can point you to. What is certain is that waiting only makes the evidence harder to gather and the property harder to follow.

There is a separate action with a clear deadline. When a will leaves a forced heir less than the law gives them, article 1216 grants the action to reform the will, which must be brought within four years from the day the heir learned both of the will and of their status as a forced heir. Our deadline calculator helps put a date on it.

When the gift was dressed up as a sale

A frequent version of the problem is a house that was not given but sold, on paper, to one child, for a price that was never really paid. The Civil Code says a gift is not presumed, so whoever claims the sale was really a gift has to prove it.

The tax law gives a useful signal. Article 63 of the Inheritance and Gift Tax Act allows the tax authority to investigate whether the obligations in a contract are real and whether a price bears relation to market value, and to charge the tax when the contract was meant to cover a gift or an advance on the inheritance. It is sufficient evidence for that purpose that the money said to have been received was never actually incorporated into the seller's assets, in contracts between people who would be each other's intestate heirs. That finding is only for tax purposes, but it shows what the law looks at.

One rule is often cited and rarely applies: article 1796 makes void a sale between a parent and a child subject to parental authority, which means a minor. A sale to an adult child is not caught by it. Why these operations go wrong from the parents' side is explained in the costly mistake of transferring a house to the children.

A gift of a house has formalities of its own

Before any of the above, it is worth checking whether the gift was properly made at all. A gift of real property is not valid unless it is granted by public deed and registered at the Registrar of Real Property. It also needs insinuación, the authorisation of a judge, and a gift that was not authorised has effect only up to a nominal amount and is void for the excess, save for the gifts the tax law exempts from that step. And the judge cannot authorise the gift until the gift tax has been paid.

So a family that finds, on reading the title, that a parent's gift skipped the judicial authorisation may have a stronger position than it thought. The comparison of the ways parents transfer property during life, and what each one costs, is in transferring a house to the children during life, and the reserved lifetime interest many parents keep is in lifetime usufruct.

You cannot sign away your share while the parent is alive

Families sometimes try to settle the matter in advance: a child signs a paper saying they will not claim, so that the parent can leave everything to a sibling. The Civil Code takes that away. An inheritance can only be repudiated after the death of the person whose estate it is, and permission given by a forced heir to the person who owes them their share, so that they can make a will ignoring it, is treated as an untimely repudiation with no value at all. More broadly, any gift or contract over the right to inherit from a living person is prohibited.

If you are the heir who wants to give your share away

The query can be read the other way round, and the answer is just as specific. After the death, there are two different things an heir can do, and they have different consequences.

Repudiating outright. Every heir may accept or repudiate freely, but not in part and not under a condition or a time limit. The Code states that whoever repudiates does not make a gift, even if they do it to benefit someone. The repudiating heir does not choose who receives: the law does. Their descendants may represent them, and if a forced heir who repudiates has no one to represent them, their portion is added to the forced half and goes to form the shares of the others. The effect goes back to the moment the inheritance opened.

Giving it to a particular person. Transferring your share to a chosen sibling is not a repudiation. The Code says that an heir who sells, gives or transfers in any way what has been left to them is thereby taken to have accepted. So you inherit first and then assign your share. If you are paid, it is a sale of hereditary rights, which must be made by public deed, and the tax authority treats any gain as your income. If you are not paid, it is a gift from you to that person, with the tax consequences of a gift. When one heir holds out rather than cooperating, the options are the ones described in selling a property without one heir's signature.

The tax side

Gifts made in life also come back for tax purposes. The Inheritance and Gift Tax Act provides that the value of whatever the heir received from the deceased during their lifetime is always added to the inheritance, and the tax is calculated on the total, deducting what was already paid as gift tax. For this purpose the earlier gift is taken at the value assigned to it when it was made, which is not the same valuation used for the civil calculation of the shares.

The exemptions are very different in size. A child, spouse, civil partner or parent is exempt from inheritance tax on the first fifty annual tax units of their share, but from gift tax only on the first five. That difference is the reason many families are surprised by the bill for a gift, and the temporary relief announced for gifts is set out in the gift tax cut.

If the parent lived outside Chile

For families spread across countries this is the hardest point, and it is fair to say so. A succession opens at the last domicile of the deceased and is governed by the law of that domicile. At the same time, property situated in Chile is subject to Chilean law even if its owner is a foreigner who does not live here. And in the intestate succession of a foreigner, Chilean heirs have the rights Chilean law would give them and may ask to be allotted what corresponds to them out of the property in Chile.

Whether the Chilean forced shares prevail over a Chilean house when the parent died domiciled abroad, especially where there is a will, is not resolved in the text of the law. It has to be analysed on the facts of each estate. The procedure for an estate opened abroad is in inheriting a Chilean property from the United States.

How we work on it

We start by reconstructing what was given, to whom and when, from the registered titles and the deeds, because the whole calculation depends on it. Then we check whether each gift met its formalities, rebuild the estate as the Code requires, and tell you in writing what your share should be and what can be claimed. The estate, the tax return and the registrations are our inheritance service; where agreement is not possible, the partition or the clawback action are handled by our civil litigation service; and the reading of the titles behind every gift is our title study service.

Heirs who live outside Chile can do all of this through a power of attorney, as set out in the house still in your parents' names.

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