Malta’s Reserved Portion: Who You Cannot Disinherit

You can write a will in Malta leaving your entire estate to a stranger. What you cannot do is leave your spouse and children with nothing — the law reserves a fixed share for them regardless of what your will says. It is called the legittima, and most people planning their estate underestimate exactly how much of it they actually control.

What the reserved portion actually is

Article 615 of the Civil Code defines the reserved portion — commonly called the legittima — as the right on the estate of a deceased person, reserved by law in favour of their descendants and surviving spouse. It exists specifically to limit testamentary freedom: whatever a will says, a fixed share of the estate must still go to these protected heirs. Everything outside that reserved share is called the disposable portion, and that part the testator remains genuinely free to leave to anyone — family, friends, a charity, or a stranger.

Two things are worth understanding upfront. First, the reserved portion applies whether or not the deceased had a will at all — it operates as a floor under testamentary freedom, not a replacement for it. Second, it is a right of credit, not an automatic entitlement to specific property: the protected heir can enforce a claim to receive their share in value, against whoever the will named as heirs, rather than necessarily inheriting a specific asset outright.

This distinction between a right in value and a right to a specific asset matters most where an estate consists largely of a single illiquid property, such as a family home. A will can validly leave the house itself to one child, provided the other protected heirs still receive their reserved share of the estate’s overall value — through other assets, a cash payment, or a co-ownership arrangement. Disputes over exactly how that value is delivered, rather than over whether it is owed at all, are one of the most common sources of contested Maltese inheritance cases in practice.

How much children are entitled to

Article 616 of the Civil Code sets the fraction reserved for children based on how many there are. All children are entitled equally, regardless of whether they were born in or out of wedlock, or were adopted — Maltese law makes no distinction here.

In other words, the total reserved for children as a group is one-third of the estate where there are four or fewer children, rising to one-half where there are five or more. If a child predeceases the testator, that child’s share passes to their own heirs rather than being redistributed among the remaining children.

How much the surviving spouse is entitled to

The surviving spouse’s reserved portion depends on whether the deceased left children or other descendants. Where children or descendants survive, the spouse is entitled to one-quarter of the estate’s value in full ownership. Where there are no children, the spouse’s reserved portion rises to one-third of the estate’s value. In addition to this share, the surviving spouse has the right to continue residing in the property that served as the matrimonial home at the time of death — a right that exists independently of, and on top of, their reserved portion in value.

Collation: when lifetime gifts get clawed back

Estate planning does not start and end with the will. If the deceased gave property to one child during their lifetime — a donation — and that donation would leave another child’s reserved portion short, the law can require the value of that lifetime gift to be brought back into account when the estate is divided. This is called collation, and it applies specifically where there is at least one other descendant who is also a co-heir, and where the deceased did not expressly exempt the gift from collation while alive.

For collation purposes, the value of the donated property is calculated as at the date the succession opens — that is, the date of death — not the value at the time the gift was originally made. For property that has significantly appreciated, such as real estate given years earlier, this can make a substantial difference to how much value is brought back into the calculation.

Dying without a will: intestate succession

Where someone dies without a valid will, the Civil Code’s intestate succession rules apply directly, without reference to a testator’s wishes at all. In broad terms: a surviving spouse and children share the estate; where there are no children, the spouse shares with the deceased’s parents; where there is no surviving spouse, the children inherit alone; and in the absence of any direct descendants or ascendants, siblings inherit, with the state as the ultimate fallback if no qualifying relatives can be found. Because these rules are fixed by law, intestate succession offers no flexibility to reflect a person’s actual individual wishes or family circumstances — which is itself one of the strongest practical arguments for making a will in the first place. Common examples of where this matters in practice include unmarried couples, who have no automatic inheritance rights under intestate succession no matter how long the relationship lasted, and blended families, where a testator may want to provide for stepchildren who would otherwise have no claim on the estate at all without an explicit will naming them.

1. Confirm whether a valid will exists; if not, intestate succession rules apply automatically.
2. Identify all descendants and the surviving spouse, since these are the only heirs entitled to a reserved portion.
3. Calculate the disposable portion by subtracting the reserved shares from the total estate value.
4. Check for lifetime donations to any descendant that may need to be brought into collation.
5. Confirm the spouse’s right of residence in the matrimonial home separately from their value-based share.

Causa mortis duty and the 2026 changes

Malta does not levy a general inheritance or estate tax. What does apply, however, is causa mortis duty on the transfer of Maltese immovable property to heirs, under the Duty on Documents and Transfers Act, Chapter 364. The standard rate is 5% of the property’s market value at the date of death.

A reduced rate applies where an heir is inheriting a property that is already their sole residence. Budget 2026 doubled the band this reduced rate applies to: the 3.5% rate now covers the first €400,000 of the property’s value, up from the previous €200,000 threshold, with the standard 5% rate continuing above that amount. On a property worth €400,000, this change alone reduces the duty payable from roughly €17,000 to €14,000.

Challenging a will that ignores the reserved portion

Because the reserved portion is a right of credit, an heir whose share was disregarded by a will does not need to have the will itself annulled — they can enforce their claim to the reserved value against the heirs named in the will. Separately, a will can also be challenged in court on entirely different grounds: lack of mental capacity, undue influence, fraud or forgery, or formal defects in how it was signed or witnessed. Such challenges must generally be brought within five years of the date of death, or from when the challenging party became aware of the will.

These are two genuinely different kinds of dispute and are often confused. Enforcing the reserved portion does not require proving anything was wrong with how the will was made — the will can be perfectly valid and still leave a protected heir short, simply because the testator (or their advisor) miscalculated the disposable portion. Challenging the will’s validity, by contrast, questions whether it should be given legal effect at all. An heir who has both concerns — a will that seems to disregard their reserved share and appears to have been made under suspicious circumstances — may need to pursue both routes, since succeeding on one does not automatically resolve the other.

A worked example

Consider a testator in Mellieħa who dies leaving an estate worth €600,000, a surviving spouse, and three children. Under Article 616, the three children together are entitled to one-third of the estate — €200,000 — split equally, so €66,666 each. Under the spousal reserved portion, since children survive, the spouse is entitled to one-quarter of the estate in full ownership — €150,000 — plus the separate right to continue living in the family home regardless of who technically inherits it.

Together, the reserved portions for the spouse and children total €350,000 of the €600,000 estate. That leaves €250,000 as the disposable portion — the part the testator was genuinely free to leave to anyone, whether that is an additional gift to one child, a charity, or a friend. A will that attempted to leave the entire €600,000 to a single beneficiary outside this reserved group would be enforceable only up to that €250,000 disposable portion; the spouse and children could still claim their combined €350,000 regardless of what the will said.

Frequently asked questions

Conclusion

Most people planning a will in Malta focus on who they want to leave things to. The more useful question is usually the opposite one: how much of the estate is actually theirs to give away in the first place. Once the reserved portions for a spouse and children are subtracted, the genuinely disposable share of an estate is often much smaller than testators expect — and a will drafted without that calculation in mind can end up creating exactly the family dispute it was meant to prevent, simply because it promised more than the law allowed the testator to give.

This article is for general information only and does not constitute legal advice or tax advice. Reserved portion and duty calculations depend on individual family and property circumstances; consult a licensed lawyer or notary before acting.