When heirs cannot agree on dividing an estate in Spain

Terms used

• Escritura de partición y adjudicación — The escritura de partición y adjudicación is the notarial deed in which heirs divide the estate and assign each asset to a named heir.
• Contador-partidor — The contador-partidor is a person who calculates and carries out the division of an estate, named in the will or by a notary.
• Juicio de división de herencia — The juicio de división de herencia is a court case in which a judge divides an estate when heirs cannot agree.
• Acción de división de cosa común — The acción de división de cosa común is a court claim that ends co-ownership of one asset, by sale if it cannot be divided.
• Legítima — The legítima is the share of an estate that Spanish law reserves for close family, known as forced heirs.

Key rules

• Notary route: Heirs holding at least 50% of the estate rights can ask a notary to appoint a partitioner, but any objection ends it.
• Court: Any heir or creditor can ask a court to divide the estate when there is no agreement.
• Legítima time limit: A claim for the legítima generally has a 5-year limit, and some regions set different periods.
• Single asset: One co-owner can ask a court to end co-ownership of a single asset, and an indivisible one is sold.

The short answer

If all heirs agree, you sign a deed and you are done. If they do not, you can ask a notary to appoint someone to divide the estate, or you can go to court. If the dispute is only about one shared asset, there is a separate court claim to end that co-ownership. The decision box below helps you choose between these.

Route 1: agree and sign a deed

All the heirs sign a notarial deed of partition (escritura de partición y adjudicación). You can also sign a private agreement first and later turn it into a public deed.

• Every heir must consent.
• If a minor or an incapacitated person is an heir and their interests conflict with the others', a judge must also approve.
• Some wills name a contador-partidor, a person who divides the estate. If yours does, that person can do the division without the heirs agreeing.

Route 2: a notary appoints a partitioner

If the will names no partitioner, heirs who hold at least 50% of the estate rights can ask a notary to appoint a contador-partidor dativo. The other heirs are notified and may object.

Be aware that the process ends if any heir objects. The notary route works only when the disagreement is not firm. If it ends, go to court.

Route 3: judicial division of the estate

Any heir, or a creditor of the estate, can bring a judicial division of the estate (juicio de división de herencia) when there is no agreement. A court then runs the process and decides. It is usually slower and costlier than the other routes, so treat it as the last step.

One shared asset: ending co-ownership

If the problem is a single property or asset owned by several people, any co-owner can bring an acción de división de cosa común to end the co-ownership. If the asset cannot be divided, as with a house, it is sold and the proceeds are shared.

Which court handles it

• If the deceased lived in an EU country at death, the courts of that country handle the whole estate. For a person who died on or after 17 August 2015 and lived in Spain, that means Spanish courts.
• If the deceased lived outside the EU but left assets in Spain, Spanish courts may deal with the Spanish assets. This includes cases where the deceased was Spanish.
• If the deceased chose the law of their own nationality, the heirs may agree to use the courts of that country.
• Within Spain, the case usually goes to the court of first instance for the deceased's last home in Spain. If they lived abroad, it goes to the court where the assets are. Notaries follow similar rules.

Time limit for a reserved share

Spanish law reserves part of an estate for close family, called the legítima. A claim for it, or to cut back gifts and bequests that reduce it, generally has a 5-year limit. The clock usually runs from the death or from when you could first claim. Courts have not always agreed on the exact start date, so do not wait.

Some regions have their own rules. In Catalonia the legítima is a money claim with a 10-year limit from death. Galicia, Aragón, Navarra, the Basque Country and the Balearic Islands also have their own regimes and periods.

What to do next

Get a Spanish inheritance lawyer to look at the will, the residence of the deceased and the region before you choose a route. Do this early if you may be claiming a reserved share.

Choosing between options

How do you divide the estate when the heirs do not all agree?

• Agree and sign a deed of partition: Choose this when all heirs agree. You sign a notarial deed, or turn a private agreement into one.

• Ask a notary to appoint a partitioner: Choose this when the will names no partitioner and heirs holding at least half of the estate rights want to move forward. The other heirs are notified and can object, and any objection ends this route.

• Go to court for a judicial division: Choose this when there is no agreement, or a notary route was opposed. Any heir or creditor can bring it, before the court of the deceased's last residence.

• Ask a court to end co-ownership of one asset: Choose this when the dispute is about a single co-owned asset. Any co-owner can ask, and an asset that cannot be divided is sold.

Start with agreement. If it fails, a notary can help only when no heir objects and the will names no partitioner. Otherwise go to court. If the deceased lived outside Spain, the court of their last country of residence generally decides, and Spanish courts can deal with assets in Spain when that country is outside the EU.

Frequently asked questions

Which court handles a dispute if the deceased lived outside Spain?

If the deceased lived in another EU country, the courts of that country generally handle the whole estate, including assets in Spain. If they lived outside the EU but left assets in Spain, Spanish courts can deal with the Spanish assets. Inside Spain, the court is usually the one where the deceased last lived, or where the assets are if they lived abroad.

How long do I have to claim my legítima in Spain?

The general time limit to claim your legítima, the share reserved for forced heirs, is 5 years, counted from the death or from when you could first claim. Some regions set their own rules: Catalonia, for example, allows 10 years from death.

Can one co-owner force the sale of a single inherited property?

Yes, any co-owner of a single asset can ask a court to end the co-ownership, and if the asset cannot be divided, it is sold. This is a separate claim from dividing the whole estate. It is worth trying an agreement first, because a court sale ends your say in the outcome.

Can a notary help if some heirs refuse to sign?

Yes, heirs holding at least half of the estate rights can ask a notary to appoint a partitioner when the will names none. The other heirs are notified and can object. If anyone objects, the notarial route ends and you must go to court.