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Spanish forced heirship

Which part of a Spanish estate cannot be left to whomever you like, what each child is guaranteed, and how much of that changes with the deceased’s region.

The deceased’s regional civil status decides the answer before any figure does
Reserved share (by law)
€200,000.00
Guaranteed to each child
€33,333.33
Freely disposable
€100,000.00
Forced shares of the estate under the chosen regime
Reserved share of the children and descendants€200,000.00
Of that, the betterment third (freely split among children)€100,000.00
What the law guarantees ONE given child€33,333.33
Freely disposable€100,000.00
Assets the widow’s usufruct falls on€100,000.00
  • What governs is the DECEASED’s regional civil status, not the heir’s and not where the property is. It is the first thing to establish and the most expensive mistake available before doing any arithmetic.
  • The two thirds of article 808 are not guaranteed per head. One of them is the betterment third, and article 823 allows giving it entirely to one child, so what is untouchable per child is one third of the estate divided among them.
  • A usufruct is not money the survivor receives: it is the right to use those assets and take their income for life, while ownership passes to the heirs. It can be commuted into a life annuity, the produce of certain assets or a capital sum, by agreement or by court order.
  • A child cannot renounce today what they will inherit tomorrow: article 816 of the Civil Code declares void any renunciation of a future reserved share.
  • Disinheriting does not take the money out of that branch of the family: article 857 of the Civil Code puts the disinherited child’s own children in their place, keeping the reserved share. And it is only available on one of the listed grounds of articles 852 to 855, stated in the will.

General information for educational purposes. It does not constitute financial or legal advice.

It does not compute Biscayan troncalidad, nor that of Aramaio and Llodio, which article 47 of the Basque law places above the reserved share; nor does it quantify the Catalan widow’s quarter, which depends on the survivor’s needs; nor value a usufruct in money; nor apply the collation of article 1035 or the imputations of articles 819 and 820. Tax is a different matter and lives in the inheritance tax calculator.

Video: how to use the calculator

1

What the reserved share is, in the law’s own definition

Article 806 of the Civil Code defines it as «the portion of assets the testator cannot dispose of, the law having reserved it to certain heirs, called forced heirs for that reason». It is not what you inherit: it is what cannot be taken from you. Article 807 names three classes, in this order: children and descendants; failing them, parents and ascendants; and the widow or widower in the form and measure the Code establishes. Article 813 closes it from the other side, forbidding the testator to impose on the reserved share any charge, condition or substitution of any kind. And article 815 gives a forced heir who has received less than their due the action for the shortfall, so this is not advice: it is a debt of the estate.

2

The two thirds everyone quotes, and the third that is really safe

Article 808 reserves two thirds of the estate to the children and descendants. What is almost never said is the sentence that follows: the parents «may dispose of one of the two parts forming the reserved share, to apply it as a betterment to their children or descendants». That is the betterment third of article 823, and it may be given entirely to one child. So of the two thirds only one is divided by head and safe from the testator’s will: the strict reserved share. On 300,000 euros with three children the reserved share is 200,000 euros, but what is untouchable per child is 33,333.33 and not 66,666.67. And where one of those entitled is in a situation of disability, the paragraph Act 8/2021 added to the same article lets the testator dispose in their favour even of the others’ strict share.

3

Seven bodies of law, and the one that governs is the deceased’s

Six regions keep civil law of their own on succession, and they do not qualify the common rule: they replace it. Catalonia sets the reserved share at one quarter (article 451-5) and leaves the spouse outside the class of forced heirs. Aragon sets it at one half, but collectively: only descendants are entitled and article 486.2 allows it to be given «to one alone». The Basque Country sets it at one third, also collective, and article 48.2 expressly authorises choosing one or several and setting the rest aside. Galicia sets it at one quarter and makes the survivor a forced heir. The Balearics set it at one third or one half depending on the number of children. And Navarre says the reserved share «has no enforceable economic content»: naming the children in it by that name alone is enough. Which of the seven applies is decided by the deceased’s regional civil status, not the heir’s and not where the assets are.

4

The base it is calculated on also changes from one law to another

Article 818 of the Civil Code forms the computable estate from the value of the assets at death, less «debts and charges», and adds the value of collatable lifetime gifts, putting a date on none of them. Catalan article 451-5 starts in the same place and additionally deducts, expressly, the expenses of the last illness and of the burial or cremation, and adds only gifts made in the ten years before death. Balearic article 47 also names the last illness, the burial and the funeral. On 400,000 euros of assets, 50,000 of debts, 12,000 of final expenses and 60,000 euros of gifts of which 20,000 are recent, the base is 410,000 euros under common law, 398,000 in the Balearics and 358,000 in Catalonia. Before arguing about the fraction it is worth knowing what it applies to.

5

The survivor’s usufruct is not money, and an unmarried partner does not always have one

Article 834 gives the spouse who was not separated legally or in fact the usufruct of the betterment third where they take with children; article 837 raises it to one half where there are only ascendants and 838 to two thirds where there are neither. Usufruct means the right to use those assets and take their income for life, while ownership passes to the heirs, and article 839 lets the heirs commute it into a life annuity, the produce of certain assets or a capital sum. The figures change entirely outside common law: in Aragon and Navarre the usufruct falls on all the assets, and in Aragon it arises from the marriage itself. And for an unmarried partner the answer splits in two: article 47 of the Basque act and the third additional provision of the Galician one put them on the same footing as a spouse, while under common law, in Aragon and in the Balearics they receive nothing by law.

Worked example

An example, and it is the calculator’s opening state. A computable estate of 300,000 euros, three children and a widow, under common law. The children’s reserved share is two thirds, 200,000 euros, and 100,000 remain freely disposable. Of those 200,000, half is the betterment third and may be given entirely to one of them, so what the law guarantees each child is 33,333.33 euros and not 66,666.67. The widow has the usufruct of the betterment third, that is over 100,000 euros of assets, which is not 100,000 euros that she receives. The same 300,000 euros and the same family, changing only the deceased’s regional civil status: 150,000 euros reserved in Aragon with not one euro guaranteed to any particular child, 100,000 in the Basque Country with the same caveat, 100,000 in the Balearics, 75,000 in Catalonia and in Galicia, and nothing in Navarre, where the reserved share is only a formula that has to be written into the will.

Frequently asked questions

How much is the forced share of a Spanish estate?
It depends on the deceased’s regional civil status, and the seven answers differ. Under common law, two thirds of the estate for children and descendants (article 808). In Catalonia and Galicia, one quarter. In Aragon, one half. In the Basque Country, one third. In the Balearics, one third where there are four children or fewer and one half where there are more than four. And in Navarre the reserved share has no enforceable economic content, so in practice it is nothing. The calculator on this page puts all seven figures side by side on the same estate.
Can I leave a child out of my will?
Under common law only on one of the listed grounds of articles 852 to 855, stated in the will, and article 857 adds what almost nobody mentions: the disinherited child’s own children take their place and keep the reserved share, so disinheriting does not take the money out of that branch of the family, it only moves it down a generation. Outside common law the answer may be yes with no ground at all: in Aragon and the Basque Country the reserved share is collective and may be given to a single descendant, and in Navarre naming the children in the foral reserved share is enough to owe them nothing.
What is the strict reserved share, and how does it differ from the betterment third?
They are the two halves of the common-law reserved share. The strict share is one third of the estate and is divided equally among the children: it is the only part the testator cannot move. The betterment is the other third, and article 823 lets them give it to one or several of their children or descendants in whatever proportion they choose. That is why the figure that really answers «how much am I sure of?» is not the reserved share divided by the number of children but the strict share divided by them: on 300,000 euros with three children, 33,333.33 euros each.
Whose regional civil status governs, mine or the deceased’s?
The deceased’s, at the moment of death. Not the heir’s, not that of the notary who drew the will and not that of the place where the assets are. An heir living in Madrid whose father had Aragonese civil status receives what the Aragonese Foral Law Code says, and a child living in Bilbao whose father had common civil status receives what the Civil Code says. It is exactly the same criterion that decides which region charges inheritance tax, and it is the first fact to establish before doing any arithmetic.
What does the surviving spouse get?
Under common law a usufruct and not ownership: over the betterment third where they take with children (article 834), over one half where there are only ascendants (837) and over two thirds where there are neither (838). Article 834 also requires that they were not separated «legally or in fact», so a separation without paperwork ends it too. In Aragon and Navarre the usufruct falls on all the assets; in the Basque Country on one half with descendants and two thirds without; in Galicia on one quarter and one half; in the Balearics on one half, two thirds or everything. And in Catalonia the spouse is not a forced heir at all: they have only the widow’s quarter of article 452-1, a maintenance debt for a survivor without sufficient resources.
We are unmarried partners. Does my partner inherit anything?
By law it depends on the regional civil status, and the answer splits in two. Article 47 of the Basque Act 5/2015 expressly names the «surviving member of the registered partnership» among those entitled, and the third additional provision of the Galician act puts on the same footing as marriage a partnership entered in its register with an express declaration that its effects are to be equivalent. In Navarre the usufruct of fidelity reaches a partner where it was granted under law 113, and in Catalonia the widow’s quarter reaches a stable cohabiting partner, but only where they lack sufficient resources. Under common law, in Aragon and in the Balearics an unmarried partner receives nothing by law: without a will in their favour they neither inherit nor take a usufruct.
Do lifetime gifts count towards the reserved share?
They do, and it is the point that causes most argument when an estate is opened. Article 818 adds to the net value of the assets the value of collatable gifts, putting no date on them, so a gift made thirty years ago still enters the base. Article 819 adds the imputation rule: what was given to a child without the character of a betterment is imputed to their reserved share, and what was given to a stranger to the freely disposable part. Catalonia is the exception: article 451-5.b) counts only gifts made in the ten years before death, except those imputable to the reserved share, which enter whatever their date.
Can a child renounce their share before their parent dies?
Under common law no: article 816 declares void any renunciation of or settlement over a future reserved share between the person who owes it and their forced heirs, and adds that those heirs may claim it anyway when that person dies, bringing into collation whatever they received for the renunciation. Article 48.5 of the Basque act, by contrast, admits renunciation by succession pact «even before the death of the deceased», and the Balearic «definición» lets a descendant renounce during life in exchange for an attribution. The same deed, signed by the same family, is valid or void according to the deceased’s regional civil status.
Does the number of children matter in the Balearics?
It is the only regime in Spain where it matters to the fraction, and the effect runs the opposite way to what you would expect. Article 42 of the Compilation sets the reserved share at «one third of the estate where there are four or fewer than four, and one half where they exceed that number». So the fifth child does not split the same amount among more heads: it enlarges the reserved share. On 600,000 euros, four children are each guaranteed 50,000 euros and five children are each guaranteed 60,000. In any other region one more child means a smaller part for each of them.
What if there are no children? Do the parents have a reserved share?
Only in three of the seven regimes. Under common law and in the Balearics, article 809 reserves them half of the estate, falling to one third where they take alongside the deceased’s surviving spouse, and article 810 divides that share equally between father and mother. In Catalonia, article 451-4 makes them forced heirs in default of descendants, for one quarter and by halves. In Aragon, Navarre, the Basque Country and Galicia ascendants are not forced heirs at all: with no descendants the whole estate is freely disposable even if the parents survive.

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Author: Thorben Rasmus Idel · Reviewed by: Nahar Geva · Last reviewed: