Definition
Legitim (also spelled legitime; called in Scots law "bairn's part" or "bairn's part of gear") is the portion of a deceased father's free movable estate to which his children are entitled by operation of law, regardless of the terms of any will. The concept is a forced heirship right protecting children from complete disinheritance in respect of movable property.
The share is calculated after the father's debts are paid and, under Scots law, depends on the family structure at death: one-half of the free movables if the mother has predeceased, one-third if the mother survives. The legitim fund is thus not a fixed fractional claim on the whole estate, but a share of net movables calculated in relation to competing rights (notably the surviving spouse's jus relictae or jus relicti).
In civilian and Continental legal systems, the concept appears more broadly as the "légitime" or "forced share," extending in some systems beyond movables to immovables and reaching beyond children to other forced heirs such as surviving spouses or parents.
Common Language
Modern common usage (Wiktionary): A portion of property fixed by law which a testator with issue is bound to bequeath to his children; common in Continental law jurisdictions.
Historical common usage (Webster's 1913): The portion of movable estate to which the children are entitled upon the death of the father.
The common definitions are functionally accurate but obscure two points critical for legal research. First, legitim in Scots law is technically not "bequeathed" at all — it is a right that arises by law independent of, and in competition with, any testamentary disposition. A child asserting legitim typically elects to do so and may thereby be barred from taking testamentary benefits. Second, the Webster's definition, while accurate as far as it goes, omits the debt-deduction step and the variable fractional share that depend on surviving family members, both of which are essential to understanding what the fund actually consists of.
Common Confusion
Legitim is frequently confused with two related but distinct concepts:
Legitim vs. legal rights generally: In Scots law, legal rights (comprising legitim for children, jus relictae for the widow, and jus relicti for the widower) are a family of claims against the movable estate. Legitim is only one of these rights; conflating it with the broader category misrepresents the competing claims that reduce the fund available to children.
Legitim vs. forced share in American law: Louisiana's "forced heirship" regime and the legitim share under Scots or Continental law are conceptually related but operationally different. Louisiana forced heirship has its own rules, qualifications, and historical evolution. Researchers should not import Scots law rules into American forced share analysis, or vice versa.
Why It Matters in Research
Historical sources consistently limit legitim to Scots law with no mention of analogous civilian systems, yet the term appears in Continental, Quebec, and Louisiana legal materials with overlapping but distinct meanings. A researcher pulling cases or treatises from different jurisdictions must not assume the Scots law fractional rules govern.
The elective nature of legitim is a significant research trap in historical Scots sources: older materials do not always make explicit that a child must elect between legitim and a testamentary benefit, and that election may bar the child from other rights. This election doctrine produces secondary litigation that turns on whether an election was made, what conduct constituted it, and whether it was revocable — none of which is apparent from dictionary-level definitions.
The calculation of the legitim fund also changed in Scots law. Post-1964 reforms (Succession (Scotland) Act 1964) significantly restructured the legal rights framework, altering the surviving spouse's rights and thereby affecting the size of the fund available for legitim. Historical sources predate these reforms and describe a different operative framework. Researchers working with pre-1964 Scottish estate materials must apply the prior rules.
The corpus connection between legitim and dead's part (the remaining portion of movables the testator could freely dispose of) is essential: legitim, the surviving spouse's legal right, and the dead's part together exhaust the movable estate. Understanding any one concept requires tracking all three.
Historical Dictionary Support
The four source dictionaries are in agreement on the core definition but vary in depth. Both editions of Black's offer only the skeletal identification — "the children's share in the father's movables" — without addressing the fractional calculation or the election requirement. This is adequate for a glossary reference but insufficient for research purposes.
Bouvier adds the alternative name "bairn's part of gear" and cross-references bairn's part and dead man's part, signaling that the term is part of a tripartite division of the movable estate. This cross-referential structure in Bouvier is genuinely useful and guides researchers toward the competing rights framework.
Burrill is the most substantive of the four, specifying the one-half or one-third fractional shares "according to circumstances" and the debt-deduction requirement. Burrill's citation to Bell's Dictionary and Bell's Appeal Cases provides a pathway into primary Scots law sources — a pointer that neither Black's edition includes.
None of the four historical dictionaries addresses the election doctrine, the interaction with jus relictae or jus relicti, or any Continental or American analogue. For those dimensions, researchers must move beyond these dictionaries into treatises on Scots succession law.
Jurisdictional Note
Legitim as described in the historical dictionaries is a Scots law concept, but analogous forced share rights exist in Louisiana (forced heirship), Quebec (similar civilian heritage), and throughout Continental European systems. In England and Wales, there is no equivalent forced heirship right for children over movables; the concept is largely foreign to the common law tradition. Researchers encountering the term in an American context should identify whether the source is drawing on Scots, civilian, or Louisiana law before applying any specific rule.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Forced Heirship; Succession (Scotland); Legal Rights in Scots Law