W hat is the forced heirship in Spain (legítima) and when does it apply?

Under the Spanish laws, two-thirds of the deceased estate must go to its children and in some cases the spouse

The forced heirship is a legal feature by which those who pass away under the Spanish laws are forced to bequeath two-thirds of its estate to its children, this legal figure is named legitime (legítima in Spanish) and applies even in the case that the testator made a will appointing a third person as to its inheritor.

This legal feature can be disturbing to some as it can be difficult to understand especially in certain jurisdictions where the testator can freely distribute its estate amongst the beneficiaries.

But, what exactly is the legítima and under what circumstances it applies?

The estate of any person Spain Whose succession laws applicable are the Spanish dying in (regardless of its nationality) is divided into three portions:

Q Does the above mean that under the Spanish law I cannot appoint whomever I want as a beneficiary to my estate?

A It does, under the Spanish regulation, forced heirs have a right to 2/3rd of the deceased inheritance even though if they have not been included in the will.

This again can be annoying to some families who do not expect such a result when planning their inheritance or at the time of probating a will in Spain.

The above takes us to another essential question which is:

Q Who are considered forced heirs according to Spanish laws?

A They are: (i) the children and descendants with respect to their parents and ascendants; (ii) in the absence of the above, the parents and ascendants with respect to their children and descendants; and ultimately (iii) the widow.

Unexpected forced heirship portions is a fairly undesired situation which can be avoided by means of a good inheritance planning, especially when a person holds interests or estate in more than one country including Spain.

Beware that provisions contained in the Spanish law apply not only to Spaniards but to those who have their domicile in Spain. This is very common for expats or to those who hold a foreign passport (UK, Ireland, USA, etc.) reside in Spain.

The EU Regulation 650/2012 on jurisdiction and applicable law in succession matters allow a person to choose as the law to govern his succession as a whole the law of the state whose nationality he possesses at the time of making the choice or at the time of death (see article 22).

This means that, for example, a UK national residing in Spain, could make a will choosing its law of nationality to govern his or her succession at the time of death, thus avoiding its succession to be subjected to the Spanish provisions and therefore to the forced heirship.

In case that a person passes away while having its habitual residence in Spain without having made a will or making a will in which he or she does not choose a third state law to govern the inheritance Spanish law will apply and as a consequence forced heirship provisions.

A well-organized inheritance is key when having an estate distributed in more than one country. If that is your case do not hesitate to contact us for a free consultation, our team of expert English speaking inheritance lawyers and probate solicitors will be glad to answer your questions.