Forced heirship in Spain
Firstly, it is important to note that the Spanish Civil Code recognises a quite limited testamentary freedom compared with other countries. Therefore, people closely related to the testator shall always receive a part of the estate, which is called “la legítima”. It is also possible to disinherit a child, but only in the cases explicitly enshrined in the Civil Code (such as denying maintenance, or seriously mistreated or slandered the parent or ancestor, see Articles 853 and 756).
Spain is divided in 17 different Autonomous Communities, and some of them have their local inheritance regulations. However, the following is according to the general Spanish inheritance law contained in the Civil Code.
The beneficiary of the reserved portion is called a forced heir and, according to the Article 807, the deceased’s spouse, descendants and – if there are no descendants – the parents or other ascendants of the deceased are entitled to the reserved portion. The spouse is not entitled to receive the property of the estate, but the usufruct. This way, the spouse has the exclusive right to use the property until his/her death.
In general terms, when the testator is survived by his children and spouse, the estate shall be divided in three shares:
- One third of the estate must be distributed in equal parts among the testator’s children.
- One third must go to the children and grandchildren of the deceased, but he can decide whether to distribute it in equal or non-equal parts, or only give it to some of the heirs, or just to one of them. The testator’s widow or widower has the right to receive at least a usufruct of this portion of the estate (but it is very common in testamentary dispositions to include more than this portion).
- The last third part can be disposed freely by the testator.
Spanish Civil Code