How does forced heirship work in Spain?

In reality, there is no such thing as ‘forced heirship’ in Spain, because the heir has the right to reject the inheritance. Inheritance rejection typically happens when the inheritance would mean more debts than assets, but there may be other reasons.

So, what do we mean by forced heirship?

This is usually referring to the fact the Spanish regulations state that the children or other descendants must be included in the inheritance, irrespective of the intention of the person that has died. In Spanish regulations, this is called “legítima”. In the case that there are no descendants, the parents or other ascendants will be considered as forced heirs.

In general, the inheritance is divided into three thirds. Two thirds go to the children or descendants, and the final third can be freely distributed.

The first third has to be equally distributed among the children. This means that, if there are two children, each of them will receive half of this amount.

The second third must also go to the children, but it can be distributed unequally. For example, if there are three children, one can receive everything and the other two nothing.

The final third can go to anyone the deceased intended, even to charity.

What are the consequences of forced heirship?

The main consequence is that the widow of the deceased cannot receive more than one third of the inheritance. However, this does have some loopholes because, by making a will, the original owner of the family home can state that the widow can have a life interest (i.e. a usufruct) in the second third that the children will receive.

The usufruct implies that the person can use the property even though he or she is not the owner. The right is absolutely free as long as no damage is done to the property. For example, if it is a house, the widow can decide to live in it or even rent it to get some income.

This is one of the main incentives to make a will in Spain. However, it is not the only reason. A will makes the entire process easier and faster, preventing a lot of issues and paperwork for the heirs. In addition to that, making a will is not too expensive, thus it usually is a very good idea if you have property in Spain.

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How are non-monetary assets divided?

Spanish regulations only deal with the value of the assets. This means that, if there is a property worth £150,000, £100,000 will go to the children: £50,000 will be divided equally and the other £50,000 distributed as stated in a will.

Who decides the value of each item?

It can be agreed by the heirs whether the attributed value is reasonable; it also can be decided via appraisal from an expert or legal arbitration. In order to avoid paying a large amount of Spanish inheritance tax, the most recommended option is, in general, an agreement between the heirs. When it comes to real estate property, it is also recommended to get advice from an expert in those matters.

If you want to manage your inheritance efficiently and have peace of mind, call us now and we will help you with anything you need relating to probate in Spain and its legal issues.

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