Knowledge Base

Beneficiaries of Spanish wills

If you are, or your client is, the relative of a person who has died having made a Spanish will, you will probably be interested in knowing whether you are, or your client is, entitled to the deceased’s estate.

Forced heirship

One of the key differences between English and Spanish inheritance law is that under English law, you can leave some or all of your estate to anyone you like: your spouse, your children, your lover, a charity or any combination of beneficiaries, without any kind of restriction.

In contrast, under Spanish law, there is the concept of forced heirship (sucesión forzosa), which is designed to protect the testator’s nearest and dearest. Essentially, the testator is required by law to leave a proportion of their estate to certain specific relatives known as forced heirs (herederos forzosos). If there are no forced heirs, the testator can leave their estate to whomever they want.

The following are considered forced heirs in the order of priority in which they are listed:

the testator’s children and their children (descendants)
(in the absence of the above), the testator’s parents and grandparents (ascendants)
the surviving spouse

So, if the testator has no children, their parents will become the forced heirs according to the priority specified above.

If the testator does have children, the estate is divided into the following three categories:

a reserved portion, known as the “legítima” (1/3^rd), which is shared equally among the children.
an additional discretionary share, known as the “mejora” (1/3^rd), which also goes to the children.
a freely disposable share, known as the “tercio de libre disposición” (1/3^rd).

The difference between the légitima and the mejora is that the former must be distributed equally between the forced heirs whereas the latter does not have to be distributed equally and can be used to benefit a particular forced heir.

Finally, the freely disposable portion (the “tercio de libre disposición“) is always available to be distributed to whomever the testator wishes (forced heirs or otherwise).

Interesting facts

If a forced heir with children should predecease the testator, the child or children of the predeceased heir do not automatically lose their entitlement but will be entitled to inherit their parent’s share per stirpes (through the branches).

The surviving spouse is entitled to a life interest – known as a usufruct – in the additional discretionary portion (mejora) of the estate and the beneficiary heirs will not be able to dispose of that portion until the surviving spouse dies.

Final comments

It’s fair to say that these concepts may appear somewhat alien at first hand to those unfamiliar with the Spanish legal system! Although this article has only touched the surface of the various scenarios possible, it’s important to have a reasonable grasp of the concepts so that you can fully understand your actual and possible entitlements under Spanish inheritance law.

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