Forced heirs and Legitimacy

In this article we explain who the forced heirs are and the relationship they have with the reserved portion as determined in article 806 of the Civil Code.

What is the reserved portion

As explained in article 806 of the Civil Code, the legitimate share is defined as the portion of the inheritance that the law reserves to certain heirs, these are the forced heirs. 

The Legítima is a part of the inheritance that the testator cannot freely assign because it is established by law that it corresponds to the forced heirs.

Who are the forced heirs

The forced heir is the person to whom the law in Spain grants a percentage of the inheritance, known as the legítima. The Legítima is a part of the inheritance that the testator cannot assign to whomever he/she wishes, it is the Spanish inheritance law that determines to whom this part of the inheritance corresponds.

The forced heirs or legitimate heirs are in the following order:

• Children who receive inheritance after the death of their parents. The forced heirs are the children whether they are children of marriage or non-marital children and adopted children. If there are no living children but there are grandchildren, these are the forced heirs and then the grandchildren.
• If there are no children or descendants, the parents are heirs by operation of law in respect of their deceased children.
• The widow or widower and in some cases the unmarried partner are always forced heirs. In the case of the widow or widower, the legitimate share is always directly related to the usufruct in the manner explained in later paragraphs of this article.

What percentage of the inheritance the compulsory heirs are entitled to receive

The different types of forced heirs are in turn different in terms of the amount to be received from the reserved portion. The amount to be received by each of the forced heirs differs in addition to the specific legislation of each Autonomous Community in Spain.

Legitimacy of the descendants

The percentage of the inheritance that is established as the legitimate share of the descendants corresponds to 2/3 of the total inheritance. These two thirds are called the legitimate third and the improvement third. 

The remaining third of the inheritance is called the free disposal third and is the part of the inheritance that the testator can freely assign to voluntary heirs.

The 2/3 corresponding to the legitimate share of the descendants is divided as follows:

-The legitimate third is divided equally among the children or descendants.

-In the improvement third, the testator can choose to whom he wants to allocate it from among his children or descendants. Depending on the distribution made by the testator of the third of improvement among his descendants we can find that:

• The Testator does not make any distinction and the third of improvement is distributed equally among his children or descendants, this is known as the long or global legitimate.
• The Testator decides to dispose of the one-third of the betterment in favour of only one of his children or descendants, this is known as the strict or short reserved portion.
• The Testator chooses to give a part of the one-third improvement to one of his children or descendants, the remaining percentage of the one-third improvement will be distributed among the rest of the children or descendants. 

The widow's or widower's share in the estate

The widow's or widower's share is always established with a usufruct:

• The widow or widower has the usufruct of the third of improvement when the inheritance coincides with that of children and descendants.
• The widow or widower has the usufruct of half of the inheritance when there are no descendants but there are ascendants.
• When there are no ascendants or descendants, the widow or widower has the usufruct of two thirds of the inheritance.

Legitimacy of ascendants

Parents or ascendants are entitled to the reserved portion when a child dies who has no descendants. In the event that the child does have descendants, the parents are not entitled to receive the reserved portion, which belongs to their descendants. 

The right to the reserved share is regulated in Article 809 of the Civil Code (except in Foral Law). Article 809 of the Civil Code establishes the parents' or ascendants' reserved share as half of the children's and descendants' inheritance, except in the case of a widowed spouse, in which case the parents' reserved share is 1/3 of the inheritance.

Is there a difference when there is or is not a will?

Indeed, the percentage of the inheritance that the forced heirs receive will depend on the existence or not of a will.

Compulsory heirs in inheritance with a will

When a person makes a will there are two types of heirs, the forced or legitimate heir and the voluntary heir. In addition, in a will there may also appear the figure of the Legacy, which is a person or persons who can receive in inheritance a property determined in the will by the testator.

In a testamentary inheritance, the testator can determine to whom he or she wants his or her freely disposable third of the inheritance to be given, as well as who is to receive the improvement third.

Compulsory heirs in inheritances without a will

When there is no Will and a person dies, the heirs established by law automatically become forced heirs. In other words, there will be neither voluntary heirs nor legacies.

Is it possible to disinherit a forced heir?

In principle, it is not possible to disinherit a forced or legitimated heir. However, there are causes established in the Civil Code whereby the testator may leave a written will to disinherit a legitimated heir. The disinheritance, although it may be reflected in the will, generally ends up in court and it is the judge who will finally determine the inheritance to be received by each of the heirs. In complex inheritances or when the intention is to disinherit someone, it is when the figure of a lawyer specialising in inheritances is most necessary.