Legacies

It’s tempting to think that the system of forced heirship under Spanish law means that only people who are forced heirs will be entitled to receive under the estate of a deceased.

As with all testamentary dispositions, a legacy only comes into effect upon the death of the testator.

The person receiving the legacy – called a legatee (legatario) – does not become an heir by virtue of the legacy but merely receives the benefit of the specific rights or goods allotted.

What can be gifted in a legacy?

Unlike forced heirs, who are entitled to the assets of the estate and liable for its debts(*), legatees acquire only the benefit of the legacy and will not be personally liable for any debts arising from the estate(**).

Legacies are allotted before the formal distribution of the estate and can thus reduce the amount of the estate pot available to the other beneficiaries although it is important to note that this must not diminish the reserved portion of the estate (legítima) distributable to the forced heirs.

Unlike with the main estate, legacies do not require formal acceptance on the part of the legatee. Legatees can also choose to renounce (reject) a legacy if they cannot or do not wish to accept it.

Final comments

Generally, it is beneficial to receive a specific legacy under a Spanish will as you or your client will acquire the benefit of the gift and will not generally be liable for any debts of the estate.

However, remember that if, as a result of one or more legacies, there are insufficient funds in the estate to the cover the reserved portion (legítima), then the legacies can be reduced – effectively, clawed back – in order to ensure that the forced heirs receive their entitlement to the reserved portions.

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(*) unless they opt to accept the estate only up to the amount of the net assets.

(**) unless the whole of the estate is distributed as legacies.

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