Spanish forced heirship: what is reserved and to whom

The short answer

Forced heirship, the legítima, is the part of an estate Spanish law sets aside for certain relatives and that whoever makes the will cannot distribute as they please. Across most of Spain it is two thirds of the estate for the children and descendants, leaving one third free. But of those two thirds only one is guaranteed per head, and in six autonomous regions the fraction is different: it runs from one half in Aragon to nothing at all in Navarre.

What it is, in the law's own words

Article 806 of the Civil Code defines it in one sentence: «Legítima is the portion of assets the testator cannot dispose of, the law having reserved it to certain heirs, called forced heirs for that reason».¹

It is worth reading twice, because it says the opposite of what people tend to assume. The reserved share is not what you inherit: it is what cannot be taken from you. A child can receive far more than their share if their parent so wished, and cannot receive less, because article 815 gives them an action for the shortfall where they have received less than their due under any title.³ And article 813 closes the door from the other side: the testator may not impose on the reserved share any charge, condition or substitution of any kind.³

Article 807 names the forced heirs and ranks them:¹

1. Children and descendants, as against their parents and ascendants.
2. Failing them, parents and ascendants, as against their children and descendants.
3. The widow or widower, in the form and measure the Code establishes.

What is missing from that list matters as much as what is in it. Siblings are not forced heirs. Neither are nephews, uncles or cousins. With one living child, a brother has no right to anything in a Spanish estate unless the will gives it to him.

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

Article 808 is the most quoted provision in Spanish succession and is almost always quoted by halves. Its first sentence reserves two thirds of the estate to the children and descendants. The second says that 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».²

That second sentence is the mejora, and article 823 develops it: a father or mother may dispose of it «in favour of one or some of their children or descendants».² One. A single one, if they wish.

So a common-law estate divides into three thirds, not two halves:

• The strict reserved share, one third, divided equally among the children. This alone is untouchable.
• The betterment, another third, which is still reserved and so cannot leave the children and descendants, but which within that group is distributed however the testator wishes.
• The freely disposable third, for anyone at all, a stranger included.

On an estate of 300,000 euros with three children, the reserved share is 200,000 euros. But what a particular child is guaranteed is not 66,666.67 euros: it is 33,333.33, because the other 100,000 can go in full to a sibling.

There is also a recent exception almost no guide records. Act 8/2021 added a paragraph to article 808: where one of those entitled is in a situation of disability, the testator may dispose in their favour of the others' strict reserved share, which until then was untouchable without exception.² What is received that way is burdened with a residual fideicommissary substitution in favour of the siblings affected, unless the testator says otherwise.

Spain does not have one forced share, it has seven

Here is the part that decides whether any of the above is of use to you. Six regions keep civil law of their own on succession, and they do not qualify the Civil Code: they replace it. What decides which applies is the deceased's regional civil status, not the heir's, not the notary's, and not where the assets happen to be.

Three of those rows deserve a slow reading.

Aragon and the Basque Country have a collective reserved share. Article 486 of the Aragonese Foral Law Code reserves half the estate to the descendants, who are the only forced heirs, and its second paragraph allows it to be distributed «equally or unequally, among all or several of those descendants, or given to one alone».⁶ Article 48.2 of the Basque act says the same of its third: the deceased «may choose among them one or several and set the rest aside», and paragraph 3 adds that omitting the setting aside amounts to doing it tacitly.⁸ So in those two regions the reserved share can be large while what a particular child is guaranteed is still nothing.

Navarre is the extreme case, and the one that makes any average figure useless. Law 267 of the Fuero Nuevo, as worded by Foral Act 21/2019, says that the Navarrese reserved share, traditionally consisting of «five feeble or Carlist shillings for movables and one robada of land in the common woods for immovables», has no enforceable economic content and confers no status as heir.⁷ Naming the children in the «legítima navarra» by that name alone is enough, and nothing more is owed to them.

The Balearics are the only regime in Spain where the fraction depends on how many children there are, 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 they are four or fewer than four, and one half where they exceed that number».¹⁰ 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.

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

Arguing about the fraction before knowing what it applies to is starting at the end, and the computation rules differ from region to region as much as the fractions do.

Article 818 of the Civil Code requires attention to the value of the assets left at the testator's death «with the deduction of debts and charges, not including among them those imposed in the will», and then the addition of the value of collatable gifts.³ It names nothing else and puts no date on the gifts.

Catalan article 451-5 starts in the same place and does two things the Civil Code does not: it expressly deducts «the expenses of the last illness and of the burial or cremation», and it adds only gifts made «in the ten years preceding the death».⁵ Balearic article 47 likewise names «the expenses of the last illness, burial and funeral».¹⁰

On the same numbers, the base comes out differently:

The 40,000 euros that disappear from the Catalan column are gifts made more than ten years ago. In Madrid they still count, and so does a gift made thirty years ago.

The survivor's usufruct is not money

What Spanish law reserves to a surviving spouse is almost never a share of the estate in ownership. It is a usufruct: the right to use certain assets and take their income for life, while bare ownership passes to the heirs. A widow with the usufruct of the betterment third of a house does not receive a third of the house: she receives the right to live in it or let it, and when she dies that right ends and the house passes whole to the children.

Article 834 gives it where she takes with children or descendants, and the detail that generates most litigation is in its opening line: only a spouse «who at the death of their consort was not separated from them legally or in fact» has it.⁴ A separation with no paperwork also ends it. Where there was a reconciliation notified to the court or the notary, article 835 restores the right.⁴

With no descendants, article 837 raises it to the usufruct of half the estate where there are ascendants, and 838 to two thirds where there are neither.⁴ And article 839 lets the heirs commute it into a life annuity, the produce of certain assets or a capital sum, by agreement or by court order.⁴

Outside common law the figures change entirely. In Aragon the widow's usufruct falls on all the assets of the first to die and, under article 271, arises from the celebration of the marriage rather than from the death.⁶ In Navarre, the usufruct of fidelity of law 253 likewise reaches all the assets and rights.⁷ In the Basque Country, half with descendants and two thirds without.⁸ In Galicia, one quarter and one half.⁹ And in Catalonia the spouse is not a forced heir at all: they have only the widow's quarter of article 452-1, which is not a share but a maintenance debt, conditional on not having sufficient economic resources to meet their needs and capped at a quarter of the net estate.⁵

And that usufruct has a value in euros which the law fixes on a scale, not the parties: 70% of the asset below the age of twenty, one point less for each further year and never less than 10%. What is left on the other side is the bare ownership, and that is what the children are assessed for inheritance tax on.

An unmarried partner: four laws yes and three no

Of all the questions this subject attracts, this is the one that tolerates an average answer least well, because the answer depends on which side of an administrative border the deceased lived.

Article 47 of the Basque act expressly names among those entitled the «surviving member of the registered partnership», on the same terms as a spouse.⁸ The third additional provision of the Galician act puts on the same footing as marriage those unions entered in the Galician Register of Registered Partnerships that declare their wish for their effects to be equivalent, and extends to their members «the rights and obligations this act recognises for spouses».⁹ In Navarre the usufruct of fidelity reaches the surviving member of a stable partnership where it was granted under law 113,⁷ and in Catalonia the widow's quarter reaches a stable cohabiting partner, but only where they lack sufficient resources.⁵

Under common law, in Aragon and in the Balearics, by contrast, the articles speak of a spouse and of nobody else. An unmarried partner receives nothing by law: without a will in their favour they neither inherit nor take a usufruct.

Can a child be left out?

Under common law, only on one of the grounds the law lists and always by stating it in the will. Those of article 853, the ones specific to children, are two: having refused maintenance without lawful cause to the parent or ascendant who disinherits, and having physically ill-treated or gravely insulted them.⁴ To those are added the grounds of unworthiness in article 756 that the same provision incorporates.

And then there is article 857, the one almost nobody mentions and the one that changes the arithmetic: «The children or descendants of the disinherited person shall take their place and shall keep their rights as forced heirs in respect of the reserved share».⁴ Disinheriting does not take the money out of that branch of the family. It moves it down a generation, to the grandchildren.

There is also preterición, which is a different thing: leaving a forced heir out without disinheriting them. Article 814 resolves it by another route, cutting down the appointment of heirs before the legacies and betterments, and voiding the will's property provisions where all the children were left out.³

Outside common law the answer may simply be yes, with no ground at all, for the reasons already seen: a collective reserved share in Aragon and the Basque Country, and a purely formal one in Navarre.

Renouncing during life: void here, valid there

A family wanting to settle the distribution early often asks whether a child can sign today a renunciation of what they will inherit tomorrow. Article 816 of the Civil Code is blunt: «Any renunciation of or settlement over a future reserved share between the person who owes it and their forced heirs is void», and those heirs may claim it anyway when that person dies, bringing into collation whatever they received for the renunciation.³

But article 48.5 of the Basque act admits that very renunciation by succession pact «even before the death of the deceased»,⁸ and the Balearic definición lets a descendant renounce during life in exchange for an attribution. The same deed, signed by the same family before the same notary, is void or valid according to the deceased's regional civil status.

A worked example with real numbers

Take a computable estate of 300,000 euros, three children and a widow, and change only the regional civil status of the person who died.

Under common law. The children's reserved share is two thirds: 200,000 euros. That leaves 100,000 freely disposable. Of those 200,000, half is the betterment third, so what each child is guaranteed 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.

In Aragon. The reserved share falls to 150,000 euros, but it is collective: the father can leave it entirely to one child and the other two get nothing. What is guaranteed per child is zero. The widow, on the other hand, has the usufruct of the whole 300,000 euros.

In the Basque Country. The reserved share is 100,000 euros and is also collective, so again nothing guaranteed per child, and the widow's usufruct falls on 150,000 euros. Were she a registered partner rather than a wife, the result would be the same, which is not true in either of the other two regions in this example.

In Catalonia. The reserved share is 75,000 euros, this time genuinely divided in equal parts: 25,000 euros per child, guaranteed. The widow is not a forced heir and her widow's quarter will depend on whether or not she has sufficient resources.

In Navarre. The reserved share is nothing. The 300,000 euros are freely disposable and the widow has the usufruct of all of it.

Five different divisions of the same money among the same people. The only thing that changed is an administrative fact almost nobody looks up before sitting down to make a will.

What forced heirship does not decide

Forced heirship says which part of the estate belongs to each heir. It does not say what receiving it will cost: that is inheritance tax, governed by the rules of the region where the deceased had their habitual residence, and that region does not always coincide with the one of their civil status. Nor does it decide how assets are valued, who occupies the family home, or how something indivisible is physically shared out.

And three things are deliberately left out of this article, because a fraction does not resolve them. Biscayan troncalidad, and that of Aramaio and Llodio, which article 47 of the Basque act expressly places above the reserved share.⁸ The quantification of the Catalan widow's quarter, which depends on the survivor's needs, age, health and the couple's standard of living.⁵ And the valuation of a usufruct in money, which is an actuarial calculation rather than a fraction.