Law on Compulsory Portions in Spain

In Which Cases does Spanish Inheritance Law Apply?

Whether Spanish law is applicable is determined by the European Succession Regulation. As a rule, the applicable law depends on the deceased person’s last habitual residence.

Diverging Regulations in the Autonomous Regions

The right to a compulsory portion is governed within the framework of inheritance law under the Spanish Civil Code. However, some autonomous regions in Spain have enacted their own or supplementary inheritance laws, known as “Foral Laws,” instead. Among these regions are

• Balearic Islands
• Catalonia
• Galicia
• Navarre
• Basque Country

How does the Spanish Compulsory Portion Law Work?

Under Spanish inheritance law, the testamentary freedom of the testator is restricted in favour of certain persons. This means that the testator doesn’t have the absolute right to decide who will inherit their assets upon their death. This system is known as the unconditional right to a compulsory portion.

Who is Entitled to a Compulsory Portion?

The persons primarily entitled to a compulsory portion are the children of the deceased and their descendants. If a child has predeceased the parent and has left behind children of their own, these children take the deceased child’s place and receive this person’s compulsory portion in equal parts. If a child of the deceased is deemed unworthy of inheritance or has been lawfully disinherited, they will not be taken into consideration. However, if this child has descendants, these are entitled to a compulsory portion and will be considered accordingly. If a compulsory heir renounces the inheritance and is thus not considered in the calculation of the compulsory portions, their descendants will likewise not receive anything.

What does Reserved Compulsory Portion mean?

The reserved compulsory portion is the portion of the estate which the testator cannot freely dispose of in their will and which their children are legally entitled to. For the compulsory portion to be determined, the gifts that must be compensated for are added to the value of the estate. The value of the estate is calculated by deducting the outstanding debts and liabilities as of the time of inheritance. Testamentary obligations (e.g., legacies or stipulations) are typically not taken into account in this calculation.

How is Compulsory Portion Calculated?

The estate is divided into three parts:

• Unconditional Compulsory Portion: The testator cannot freely dispose of the first third of the estate, which is reserved exclusively for the compulsory heirs.
• Improvement Share: The testator can dispose of the second third of the estate only in favour of their own children or the descendants of the latter. The only permissible restrictions on the improvement share are those in favour of another heir or their descendants. However, the surviving spouse’s compulsory share of the inheritance must always be deducted from the improvement share.
• Free Third: The testator can freely dispose of the final third of their estate.

What will be Offset Against Compulsory Portion?

For equal treatment of the compulsory heirs to be guaranteed, gifts will be offset against the compulsory share. This offsetting will occur irrespective of whether the deduction from the cumpulsory portion had been agreed upon at the time of gifting. A legacy or stipulation in favour of a compulsory heir will be offset against the improvement share if the testator has explicitly determined so or if it is not covered by the free third.

What if the Deceased had no Children or other Descendants?

If the deceased had no children or other descendants, their parents and other ancestors are entitled to compulsory portion. In this case, the compulsory portion constitutes half of the estate, while the surviving spouse, if there is one, is entitled to one-third of the estate.

What does the Compulsory Share of the Spouse Comprise?

The surviving spouse is also among those entitled to compulsory portion. In the event of separation, there is no entitlement unless the surviving spouse had been forgiven by the deceased. The spouse receives a usufruct of the improvement share and, if there are no children or other descendants, a usufruct for half of the estate. In the absence of descendants and other relatives, the spouse inherits a usufruct for two-thirds of the estate.

What Happens if the Deceased was Unmarried and Childless?

If the deceased person was unmarried and childless, their parents alone are entitled to inherit. If the parents are no longer alive, the deceased person’s siblings will inherit in equal parts.

Does a Compulsory Heir have the Right to be Informed?

Under Spanish inheritance law, compulsory heirs have the right to be informed about the particulars of the estate. A compulsory heir has the right to know which assets are part of the inheritance. If the other heirs do not provide the required information voluntarily or provide it only partially, a compulsory heir has recourse to legal action. This means that they can compel the heirs to provide the necessary information by means of court order. The court can rule the heirs to provide comprehensive information about the estate.

Which Courts are Authorised to Enforce the Compulsory Portion Provisions?

Court jurisdiction is determined in accordance with the European Succession Regulation. As a rule, jurisdiction will lie with the courts of the country in which the deceased had their last habitual residence. If Spanish courts have jurisdiction, the procedure shall comply with the Spanish Code of Civil Procedure.

Att. Prof. (GTU / Georgien) Dr. phil. Stephan J. Lang