Forced heirship (legítima) in Spain and how much freedom you really have

Key rules

• Children's share: Children and descendants are protected for two thirds of the estate, leaving one third freely disposable.
• Spouse: A surviving spouse gets a usufruct, not ownership, and it grows when there are no children or parents.
• Siblings: Brothers and sisters have no protected share.
• Disinheriting: You can only cut out a protected heir for a legal cause stated in your will.
• Foreign nationals: If you are a foreign national living in Spain, you can choose your nationality's law in your will, which generally replaces the Spanish shares.

The short answer

Under the common Spanish rules, you cannot leave your estate to whoever you like. Children and descendants are protected for two thirds of the estate, leaving one third freely disposable. The limits depend on the applicable law and on the region. Some regions (foral territories) have their own rules, and a foreign national may be able to choose a different law. Both points are covered below.

How the protected share works for children

The protected two thirds is split in two:

• One third is the strict legítima. It must be shared equally among your children (or their descendants if a child has died).
• One third is the improvement share (mejora). You can give it unequally among your children and descendants, for example to favour one child or a grandchild.
• The last third is yours to leave to anyone.

The legítima is a right to a share of the value, not necessarily to a particular house or asset. It can be paid in cash.

What your spouse gets

A surviving spouse does not own a protected share. They receive a usufruct, which is the right to use the property or its income without owning it. The size depends on who else survives you:

• With children: usufruct over one third (the improvement share).
• With parents but no children: usufruct over one half of the estate.
• With no children or parents: usufruct over two thirds of the estate.

A spouse who is legally separated loses these rights.

If you have no children

Your parents are protected instead. They are entitled to one half of the estate, or one third if your spouse survives you. Brothers and sisters have no protected share.

Ways to shape who gets what

You have several legal tools within the limits:

• Unequal improvement share. Give the mejora to one child or to grandchildren.
• Disinheriting for a legal cause. You can cut out a protected heir only for a cause the law lists, and you must state it in your will. An heir who is legally unworthy also loses the share.
• Dividing the estate yourself. You can leave a business or property to one heir and require that the others be paid their legítima in cash. A 2003 reform made this possible for a business.
• Protecting a child with a disability. The whole improvement share can be placed in trust for a descendant who is legally incapacitated. Reforms in 2021 widened the cases that qualify.
• Cash payment. You or your heir can settle the legítima in cash when your will says so.

Large gifts made during your life can be counted back into the estate, and can be reduced if they cut into the protected shares.

If you are a foreign national living in Spain

If you live in Spain and are not a Spanish national, you can state in your will that the law of your nationality governs your whole estate, including Spanish assets. This generally replaces the Spanish protected shares. A British national who chooses English law, for example, can leave the estate more freely, subject to English family claims.

Keep these limits in mind:

• Children you leave out may still go to court, and the chosen law may give them its own claims.
• Spanish tax still applies.
• Spanish nationals cannot avoid protected shares by moving abroad.
• Have a Spanish notary or inheritance lawyer confirm your choice is valid before you sign.

Regions with their own rules

The figures above apply in the territories under the common Spanish rules. Foral regions have different rules on protected shares. Check which law applies to your estate before you plan anything.

The checklist, warnings and questions below help you go through these steps.

Checklist

• Find out whether common Spanish law or a regional (foral) law applies to your estate.

• List your children, grandchildren, parents and spouse, since they are the people the legítima protects.

• Work out which part of your estate is freely disposable and which part is the improvement share (mejora) you can split unequally.

• Decide whether a business or property should go to one heir, and plan to pay the others their legítima in cash.

• State a legal cause in your will if you want to disinherit a forced heir.

• Decide whether to choose your nationality's law in your will, if you are a foreign national living in Spain.

• Ask a Spanish notary or inheritance lawyer to confirm that your chosen law is valid before you sign.

What to watch out for

• Children can still challenge your will: Choosing your nationality's law to avoid the legítima can lead disinherited children to sue, and a court may refuse a result it sees as manifestly incompatible with Spanish public policy. Have a Spanish notary or lawyer check that the choice is valid and worded clearly in your will.

• Your chosen law may add its own claims: If a British national chooses English law, the estate can be left freely, but English family provision claims may still apply. Ask a lawyer who knows both systems what claims your family could make.

• Spanish tax still applies: Choosing another law changes who inherits, not the Spanish tax due on Spanish assets. Plan for the tax separately with an adviser.

• Spanish nationals cannot escape forced shares by moving: The choice of law is not available to Spanish nationals who want to avoid forced shares through living abroad. If you are Spanish, plan within the legítima rules using the improvement share and cash payment.

Frequently asked questions

Can I leave my Spanish home to one child only?

Yes, you can favour one child, but only within the part of the estate you control. You can give the improvement share (mejora) unequally among children and grandchildren, and a business can go to one heir if the others are paid their legítima in cash. The legítima is a right to a share of the value, so it can be paid in cash rather than in property.

Does my spouse inherit if I have children?

Yes, your surviving spouse gets a usufruct, the right to use the property or its income, over one third of the estate when there are children. With parents but no children it is one half, and with neither it is two thirds.

Do my brothers and sisters have any forced share?

No, siblings have no legítima under the Civil Code.

Can a child be left out completely?

Yes, but only through disinheriting them (desheredación) for a legal cause that you state in your will. A heir who is unworthy (indignidad) also loses the legítima. Without a valid cause, the child can still claim the protected share.