Lifetime gifts and the forced-heirship clawback (colación)

Key rules

• Gifts count: Gifts to your children are added back when the legítima is calculated, however long ago you made them.
• Value: Gifts are valued at their worth at your death, not on the day you gave them.
• Reduction order: Excessive amounts are cut from legacies first, then from gifts, newest first.
• Regions: Catalonia, Aragon, Navarre, Galicia, the Balearic Islands and the Basque Country have different rules.

Giving early does not avoid forced heirship

Gifts you make to your children in life are counted when your estate is divided. If they leave too little for your forced heirs, they can be reduced after your death. Giving early only changes the timing. It does not remove the legítima.

The rules below apply in areas under the common Civil Code. Catalonia, Aragon, Navarre, Galicia, the Balearic Islands and the Basque Country have their own regimes, and a foreign national can sometimes choose their national law. Check which regime applies to you with a Spanish inheritance lawyer.

How gifts are counted

The legítima is worked out on two things added together: your net estate at death (after debts and funeral costs) and the gifts you made in life.

• Value used. A gift is valued as the thing is worth at your death, not on the day you gave it. A flat that doubles in value counts at the higher figure.
• Gifts to children. These are charged against that child's legítima.
• Gifts to anyone else. These are charged against the share you can leave freely, the tercio de libre disposición.

What happens if you gave too much

If your gifts and legacies together are more than the share you could freely dispose of, the excess is "inoficioso" and can be reduced. The order is:

1. Legacies in your will are cut first, in proportion.
2. Then gifts are cut, newest first. The oldest gifts are protected longest.

How long a gift can be challenged

There is no fixed look-back period. A gift made many years before death can still be counted and reduced. The claim to reduce an excessive gift is generally held to expire 5 years after the donor's death. Courts have not been consistent on the period and its start date, so a lawyer should confirm it for your case. Some regions set their own periods. In Catalonia, the time to claim the legítima is 10 years from death.

Colación: a separate duty between children

Colación is different from the clawback above. A child who inherits must bring gifts received from you into the division of the estate, so that children are treated evenly. You can exempt a child from this. If you want to, say so in writing.

What to do

The timeline and checklist below walk you through listing your gifts, estimating their value at death, and testing them against the share you can freely leave. The FAQ answers common questions about values, order of reduction and regions.

Timeline and deadlines

• Make a lifetime gift to a child; it can be counted later however long ago it was made: at any time during your life

• The gifts are added to the estate and valued as they are worth at death: when the donor dies

• Heirs can claim a reduction of gifts that exceed what could be freely given: generally within 5 years of the donor's death

• In Catalonia, claim the legítima: within 10 years of death

Checklist

• List every gift you have made to your children, however long ago, because all of them can be added to your estate.

• Estimate what each gift will be worth at your death, since that value is the one counted, not the value on the day you gave it.

• Check whether the gifts plus your legacies stay within the share you can freely leave, because any excess can be reduced.

• Decide whether you want a child to bring a gift into the partition, and say in writing if you exempt them from doing so.

• Ask a Spanish inheritance lawyer which regime applies to you if you live in Catalonia, Aragon, Navarre, Galicia, the Balearic Islands or the Basque Country.

Frequently asked questions

Which gift value is used when the gifts are added back to the estate?

The gift is valued at its worth on the day the donor dies, not on the day you gave it. If a property you gave a child has gone up in value, the higher figure is the one counted.

Which gifts are cut first if the gifts are too large?

Legacies in the will are cut first, in proportion, and only then lifetime gifts, starting with the newest.

How long after death can someone challenge an excessive gift?

The claim to reduce an excessive gift generally expires 5 years after the donor's death, under the common rules. There is no limit on how old the gift can be, so a gift made many years earlier can still be reduced if the claim is brought in time.

Do the same gift rules apply in Catalonia or the Basque Country?

No, these rules are for the common Spanish rules, and Catalonia, Aragon, Navarre, Galicia, the Balearic Islands and the Basque Country have their own regimes. Catalonia, for example, gives 10 years from death to claim the legítima.