You have drawn up a will. You have decided who will receive your home, your savings and the rest of your assets. Everything seems settled. But if Spanish law governs your succession, there may be a significant limit to that freedom: the statutory share.
In Spain, certain people are entitled by law to receive a share of the inheritance, even if the will states otherwise. These are known as ‘forced heirs’ or ‘legitimaries’.
This is particularly important for foreigners living in Spain, who own property here or have drawn up their will in another country. A will may be perfectly valid, yet some of its provisions may still have to be reduced or amended if they infringe upon the rights of the legitimate heirs.
However, there is a caveat: the Spanish statutory share does not automatically apply to everyone who owns assets in Spain. In an international succession, it must first be determined which law governs the inheritance.
In this guide from Sol-4Gestion, we explain what the statutory share is, who can claim it, how to calculate it and how it may affect a foreign will.
Article 806 of the Civil Code defines the statutory share as the portion of the estate which the testator cannot freely dispose of because the law reserves it for certain heirs.
To put it more simply: making a will in Spain does not necessarily mean you can distribute 100 per cent of your assets as you wish.
If there are compulsory heirs and Spanish common civil law applies, a portion of the estate is legally protected. Therefore, when discussing wills and the reserved share in Spain, it is important to distinguish between:
- What the testator wishes to do;
- The portion of the estate over which they are free to decide;
- And the minimum rights that the law grants to certain family members.
Who are the compulsory heirs in Spain?
According to the Common Civil Code, the following are compulsory heirs:
- Children and descendants, in relation to their parents and ascendants.
- If there are no such heirs, the parents and ascendants.
- The surviving spouse, in the manner and proportion laid down by law.
However, there is an important distinction. Legal heirs in Spain and compulsory heirs are not exactly the same.
Legal heirs are the people entitled to inherit when there is no valid will or when the will does not dispose of the entire estate. Compulsory heirs, on the other hand, are those who are entitled to a protected share even when a will does exist.
And the rules are not the same throughout Spain
The figures set out below relate to Spanish common civil law. Regions and territories such as Catalonia, Aragon, Navarre, Galicia, the Balearic Islands and the Basque Country have their own civil laws, which may establish very different systems of statutory inheritance.
Therefore, before calculating a statutory share, it is essential to know which civil law applies to the succession. You can rely on our specialist advice on inheritance matters.
There is no single percentage for the statutory share in Spain that applies to all cases. It depends primarily on who the compulsory heirs are.
Where there are children or descendants, the Civil Code reserves two-thirds of the estate for them. These two-thirds are divided as follows:
- One-third as a strict compulsory portion: this must respect the rights of the children entitled to a compulsory portion.
- The ‘tercio de mejora’: this is also reserved for children or descendants, but allows one or more of them to be favoured.
- The remaining third is the freely disposable third, which may be bequeathed to any person.
Therefore, it would be incorrect to simply say that ‘each child is entitled to two-thirds’. The two-thirds constitute a collective reserve in favour of the descendants. The ‘tercio de mejora’ allows one of them to receive more than the others.
A simple example
Let us imagine a net inheritance of 300,000 euros and three children, without going into other family circumstances. The basic structure would be:
- €100,000: one-third of the strict compulsory portion.
- €100,000: one-third as a preferential share.
- €100,000: one-third at the testator’s discretion.
In principle, the one-third statutory share would be divided amongst the three children, amounting to approximately €33,333 for each.
The €100,000 from the ‘improvement’ third could be used to benefit one or more children or descendants. And the €100,000 from the freely disposable third could be left, for example, to the spouse, another relative, a person with no family relationship, or an organisation.
This structure is one of the reasons why calculating the statutory share requires more than simply applying a percentage to the total value of the estate.
What are the reserved two-thirds?
The reserved two-thirds are the portion specifically protected for descendants where ordinary law applies and there are children. The testator cannot override this right simply by stating in their will that they wish to leave all their assets to another person.
To deprive a compulsory heir of their right, there must be a valid legal ground for disinheritance or some other circumstance recognised by law.
What is the ‘tercio de mejora’?
The ‘tercio de mejora’ forms part of the two-thirds reserved for children and descendants, but offers the testator much greater flexibility. They may use it to favour one or more descendants.
For example, a parent with three children could use the ‘tercio de mejora’ to favour one of them, whilst still respecting the strict compulsory portion due to the others. This difference between the strict compulsory portion and the ‘tercio de mejora’ explains why two children do not necessarily have to receive exactly the same share of the estate.
What is the discretionary third?
The freely disposable third is, as its name suggests, the portion that the testator may allocate as they see fit. It may be left:
- to one of the children;
- to the spouse;
- to another relative;
- to an unmarried partner;
- to a friend;
- or to any other person or entity.
This is the part of the estate over which there is the greatest freedom of disposition under this system.
Under Spanish common civil law, parents and ascendants are entitled to a statutory share where there are no children or descendants. Their statutory share is, generally speaking, half of the estate, although this is reduced to one-third if they share the estate with the surviving spouse.
The surviving spouse’s statutory share usually consists of a right of usufruct, not full ownership of a part of the estate.
| Family circumstances | Rights of the statutory heir |
| Parents or ascendants with no descendants | 1/2 of the estate |
| Parents or ascendants with a surviving spouse | 1/3 of the estate |
| Surviving spouse with descendants | Usufruct of the one-third reserve |
| Surviving spouse with ascendants | Usufruct of half the estate |
| Surviving spouse with neither descendants nor ascendants | Usufruct of two-thirds of the estate |
To calculate the statutory share, one must value the estate, deduct any applicable debts, review certain gifts made during the testator’s lifetime and identify the statutory heirs.
Next, the amount to which each heir is legally entitled is compared with what they receive under the will.
A person may be named in the will and yet receive less than their statutory share.
Yes. If a child receives less than their statutory share, they may claim that their share be made up. Furthermore, testamentary dispositions that exceed the disposable portion may be reduced to respect the rights of the compulsory heirs.
The statutory share does not necessarily render the entire will void. Where it prejudices a statutory heir, it may be necessary to make up the shortfall, reduce bequests or set aside certain provisions.
Preterition may also occur, that is, where a compulsory heir has not been duly taken into account. In certain cases, particularly where children or descendants are affected, the consequences may extend to the very status of heir.
For this reason, the question is usually which provisions of the will need to be adjusted to comply with the statutory share.
A will drawn up in another country may be valid, but this does not automatically determine which law governs the inheritance. A distinction must be made between:
- The validity of the will.
- The legislation governing the rights of the heirs.
If Spanish common civil law applies, it must be checked whether the foreign will respects the rights of the heirs entitled to a compulsory share.
Compulsory inheritance in Spain for foreign nationals
Owning a property or assets in Spain does not automatically mean that the Spanish compulsory share applies. The European Succession Regulation 650/2012 establishes, as a general rule, that succession is governed by the law of the country where the deceased had their habitual residence.
However, a person may choose to have their succession governed by the law of their nationality, provided that the choice has been made correctly. Therefore, in an international inheritance, it is advisable to check:
- nationality;
- habitual residence;
- will and any choice of law;
- location of the assets;
- family circumstances;
- and the civil law applicable in Spain.
Nor does the heir’s foreign nationality in itself deprive them of their rights. The decisive factor is which law governs the succession.
At Sol-4 Gestion, we have been handling all these matters since 2001
At Sol-4 Gestion, we help foreign property owners and their families to review wills, plan for succession and manage inheritances in Spain.
We can analyse how Spanish law applies to each individual case, coordinate a Spanish will with that of the country of origin, and manage the inheritance even when the heirs live outside Spain. Please contact us.
It is the portion of the estate that the law reserves for certain compulsory heirs and which the testator cannot freely dispose of when the Spanish system of compulsory shares applies.
It depends on the relatives who survive the deceased and the applicable civil law. Under common law, children and descendants are entitled to two-thirds of the estate: one-third as the strict compulsory portion and one-third as the ‘mejora’.
There is no single percentage applicable to the entire estate. The one-third statutory share is distributed amongst the children entitled to a statutory share, whilst the one-third ‘mejora’ may be used to favour one or more descendants.
Yes. The existence of a will does not remove statutory inheritance rights where these apply. If an heir has received less than their entitled share, they may lodge a claim to receive the full amount of their statutory inheritance.
It depends on the law governing the succession and whether there are other heirs entitled to a statutory share. If Spanish common civil law applies and there are children, they have rights that must be respected.
Not necessarily. In international successions, the applicable law must be determined in accordance with, amongst other rules, the European Succession Regulation 650/2012. The habitual residence and a possible choice of the law of the deceased’s nationality may be decisive factors.
Not simply because it was drawn up abroad. It is necessary to analyse which law governs the succession. A foreign will may be formally valid whilst the distribution of the estate remains subject to a different set of laws.
No. Common civil law is not the only system of inheritance law in Spain. Catalonia, Aragon, Navarre, Galicia, the Balearic Islands and the Basque Country, amongst other territories with their own civil law, have specific inheritance rules. Each case must be analysed in accordance with the applicable legislation.
It is advisable to do so, especially if you have assets in several countries, children, a spouse or partner, or a will drawn up before you moved to Spain. Reviewing it in advance allows you to check which legislation would govern the succession and avoid contradictions between documents from different countries.
At Sol-4 Gestion, we can review your situation and clearly explain what would happen to your assets in Spain, before your heirs have to find out for themselves.
