Many people believe they can leave their estate "to whomever they wish". That is not entirely true. Spanish law reserves a part of the estate for certain relatives, even if the will says otherwise. That protected part is called the forced share (legítima), and understanding it is essential to making a valid will.
What is the forced share?
The forced share is the portion of the estate that the law compulsorily reserves for the forced heirs. The testator cannot dispose of it freely: if they ignore it, the will may be challenged.
Who are the forced heirs?
- Children and descendants (the first in line of entitlement).
- Failing children, parents and ascendants.
- The surviving spouse, who is entitled to a usufruct over part of the estate.
How the estate is divided (ordinary Civil Code)
When there are children, the estate is divided into three thirds:
- Strict forced-share third: distributed compulsorily and in equal parts among the children.
- The 'mejora' (improvement) third: also for children or descendants, but you can distribute it unequally (to "favour" one of them).
- Freely disposable third: this one you can leave to whomever you wish (a friend, an NGO, a single child, etc.).
Some communities with their own civil law (Catalonia, Galicia, the Balearic Islands, Aragon, Navarre, the Basque Country) have different and more flexible forced-share rules. In the Valencian Community the ordinary Civil Code applies, with the thirds described here.
Can a child be disinherited?
Only in the cases strictly set out by law (mistreatment, denial of maintenance, etc.) and expressly justifying it in the will. Outside those grounds, a forced heir cannot be deprived of their forced share.
A good will is not the one that distributes "as you please", but the one that distributes as you please within what the law allows, leaving no cracks for challenges.
Informational content, not legal advice. Forced-share rules vary depending on the applicable civil legislation; consult your case with a lawyer.
Frequently asked questions
Who are the forced heirs?
The descendants (children and, failing them, grandchildren); failing those, the ascendants (parents); and the surviving spouse, who is entitled to a share in usufruct. The law reserves the forced share for them, so they cannot be freely excluded.
What is the freely disposable third?
Under the Civil Code, the estate is divided into three thirds: strict forced share, improvement ('mejora') and free disposal. The freely disposable third is the part that the testator may dispose of in favour of any person, whether or not they are an heir.
What is the difference between the strict forced share and the improvement?
The strict forced share is the minimum part distributed equally among the forced heirs. The improvement ('mejora') is another third that the testator may use to favour one or more descendants, without leaving the family circle.
Can a child be disinherited?
Only on the grounds strictly set out by law (such as physical mistreatment, serious insults or denial of maintenance) and by stating it in the will with an indication of the ground. Outside those cases, a forced heir cannot be deprived of their forced share.