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 you need to understand it to make a valid will.
In this article
What the forced share is
It is the part of an estate that the law reserves for certain relatives, the forced heirs, and which a person making a will cannot freely dispose of. If a will does not respect it, those affected can claim it. The Valencia region applies the common Spanish Civil Code to anyone with common civil status (vecindad civil común), so these are the rules that apply here. If the deceased was a foreign national or from a region with its own civil law, another law may govern.
Who the forced heirs are
- Children and descendants.
- If there are none, parents and ascendants.
- The surviving spouse, in the way the law sets: with a life interest (usufruct), not ownership.
Siblings, nephews and nieces or an unmarried partner are not forced heirs under the Civil Code: they only inherit if the will says so or, without a will, in the order set by law.
How it is shared when there are children
| Third | For whom | What you can decide |
|---|---|---|
| Strict forced share | All children equally | Nothing: it is compulsory |
| Improvement | Children or descendants (grandchildren too) | Share it however you like among them, or give it to one |
| Free disposal | Whoever you choose | Everything: a child, a partner, a friend, a charity |
If a child has a disability, the law allows you to leave them the other children's strict share too, subject to conditions. And if the surviving spouse inherits alongside children, they are entitled to the life interest in the improvement third: the children own that third, but the spouse uses it or receives its income for life.
If there are no children
- Parents or ascendants: half the estate, or a third if there is a surviving spouse.
- The spouse, alongside the parents: life interest in half the estate.
- The spouse, with no children or parents: life interest in two thirds of the estate.
The heirs can pay the spouse's life interest in another form (an annuity, specific assets or money) if they agree or a judge decides.
What counts when calculating it
The forced share is not calculated only on what is left at death. Gifts made during life are added in, and what a child received during life is deducted later in the division, unless the donor provided otherwise. So gifts to one child can end up being balanced out in the inheritance. We cover it in giving during your lifetime or inheriting.
Can a child be disinherited
Only on grounds set by law and stating them in the will, with the specific ground. Among them: refusing the parent maintenance without legitimate reason, physical abuse or serious insults, or the grounds of unworthiness to inherit. If the disinherited child denies it, the other heirs must prove the ground is true, and if it is not proved or is not a legal ground, the disinheritance does not take effect against them. And even if it is valid, the disinherited child's own children take their place in the forced share.
Tools within the law
- Make good use of the improvement and free third to favour whoever needs it most.
- Make the division in the will itself, stating which asset goes to whom.
- Pay the forced share in cash so a business or asset is not split.
- Leave the spouse as much as possible from the free third.
We explain it in estate planning.
If you have been left without your share
If a will does not leave you what you are entitled to, or the deceased's gifts ate into your share, you can claim what is missing. It is best done with the inventory and the gifts in hand, and before signing the acceptance of the inheritance. At Equus Capital it is reviewed by Laura Expósito, a lawyer registered with the Valencia Bar: inheritance services in Valencia.
Frequently asked questions
Who are the forced heirs?
Children and descendants; if there are none, parents and ascendants; and the surviving spouse, who is entitled to a life interest. The Valencia region applies the common Civil Code, unless the deceased had a different civil status or was a foreign national.
How large is the children's forced share?
Two thirds of the estate: one third equally and another, the improvement third, which can be shared unequally among children or descendants. The remaining third is freely disposable.
What does the surviving spouse get?
With children, the life interest in the improvement third; with parents, the life interest in half; with neither, the life interest in two thirds.
Can I leave everything to one child?
Not everything. You can give them the improvement third and the free third, but the strict forced share goes to all children equally.
Can a child be disinherited?
Only on legal grounds, such as refusing maintenance or physical abuse or serious insults, stated in the will. If the child denies it, the other heirs must prove it.
Do grandchildren inherit if their parent was disinherited?
Yes. The disinherited person's children take their place in the forced share.
Do lifetime gifts count for the forced share?
Yes. They are added in to calculate it, and what a child received is deducted later in the division, unless the donor provided otherwise within the law.
Are siblings forced heirs?
No. They only inherit if the will says so or, without a will, when there are no descendants, ascendants or spouse.
For information only, not legal advice. Forced share rules vary with the applicable civil law; have your case reviewed by a lawyer.