Block I. Article IV.
Did you know that in Spain you cannot freely dispose of your entire estate when drafting a will? Spanish law provides special protection to certain family members through the figure of forced heirs or legitimaries, guaranteeing that they receive a minimum portion of the inheritance known as the legitimate portion. This legal protection constitutes one of the fundamental pillars of the Spanish succession system and represents rights that, literally, cannot be ignored.
Descendants: The Main Legitimaries of the Spanish Succession System
Who exactly are the descendant forced heirs?
Article 807 of the Spanish Civil Code establishes with complete clarity that children and descendants with respect to their parents and ascendants constitute the first order of forced heirs. This categorization does not distinguish between biological, adoptive, marital or extramarital children, granting all of them identical legitimary rights.
The current regulation includes within this category:
- Children of any filiation: both biological and adoptive have the same inheritance rights
- Grandchildren and great-grandchildren: when there is a right of representation due to predeceasing of their progenitors
- Descendants of any degree: provided that there are no heirs of superior degree
The Legitimate Portion of Descendants: Two Thirds of the Estate
Descendants have the right to two-thirds of the hereditary assets of the decedent, as established by article 808 of the Civil Code. This legitimate portion is divided into two clearly differentiated parts:
Third of strict or short legitimate portion: Represents one third of the hereditary estate that must be distributed mandatorily in equal parts among all children or descendants. The testator cannot dispose of this portion differently.
Third of betterment: Constitutes the second third which, although it continues to be part of the legitimate portion, allows the testator to decide which descendant or descendants receive it and in what proportion. This flexibility grants certain freedom of disposition within the legitimary framework.
Practical Cases: When Descendants Exercise Their Rights
Spanish jurisprudence has consolidated numerous cases where descendants have successfully defended their legitimary rights. A paradigmatic example is constituted by the inheritance of Nobel Prize winner Camilo José Cela, where the Supreme Court determined that the son had the right to receive two-thirds of the inheritance, including donations made during lifetime, establishing that his legitimary rights amounted to more than five million euros.
Rights of the Surviving Spouse: Usufruct as Legitimary Protection
The Particularity of Widowhood Usufruct
The surviving spouse holds a unique position within the Spanish legitimary system. Unlike descendants and ascendants, the widower or widow does not inherit full ownership of the assets, but rather receives usufruct rights over a determined part of the inheritance.
Quantification of Usufruct According to Concurrence of Heirs
The amount of widowhood usufruct varies considerably according to which other forced heirs it concurs with:
With descendants: The surviving spouse has the right to usufruct of the third destined for betterment. This right can be extended through favorable testamentary dispositions.
With ascendants of the decedent: In the absence of descendants, the usufruct extends to half of the hereditary estate.
Without descendants or ascendants: The surviving spouse obtains usufruct of two-thirds of the inheritance, becoming the main beneficiary.
Commutation of Usufruct: Flexibility in Collection
An important characteristic of widowhood usufruct is the possibility of commutation. The heirs may opt to satisfy the right of the surviving spouse through cash capital, a lot of hereditary assets or life annuity. However, this process requires the agreement of the widower in the valuation and specification of the assets, and without such agreement the judge must decide.
Did you know that…? Widowhood Usufruct in Second Marriages
A frequently unknown aspect is that when the surviving spouse concurs with children who are not theirs (typically in second marriages), these can demand that the usufruct be satisfied through cash capital or a lot of assets, thus avoiding indefinite co-ownership.
Ascendants as Subsidiary Heirs: When There Is No Descendancy
The Subsidiary Character of the Legitimate Portion of Ascendants
Parents and ascendants constitute the second order of forced heirs, acting only when the decedent lacks children and descendants. This subsidiarity responds to the principle of family proximity that inspires our succession system.
Quantification of the Legitimate Portion of Ascendants
Article 809 of the Civil Code establishes that the legitimate portion of parents or ascendants constitutes half of the hereditary assets. Nevertheless, this amount is reduced to one third of the inheritance when they concur with the surviving spouse of the descendant decedent.
Distribution Among Ascendants
The legitimate portion of ascendants follows specific distribution criteria:
- Absolute preference of proximity of degree: parents exclude grandparents
- Absolute inapplicability of the right of representation: unlike descendants
- Succession by lines in equality of degree: division between paternal and maternal line
Deprivation of the Legitimate Portion of Ascendants
There exist specific circumstances that can deprive ascendants of their legitimary rights. The father will be excluded when he has been judicially condemned for the relations that gave rise to generation or when filiation has been judicially determined against his opposition. Nevertheless, these restrictions can cease by determination of the legal representative of the child or by will of the descendant himself upon reaching full capacity.
Special Cases and Exclusions: Situations that Require Specialized Attention
The Right of Representation: When Heirs Predecease
One of the most important institutions in Spanish succession law is the right of representation. When a child of the decedent dies before the progenitor, their descendants (the grandchildren of the decedent) represent them in the inheritance, occupying their place and receiving the legitimate portion that would have corresponded to them.
This right operates exclusively in direct descending line and never in the ascending line. In collateral line it only proceeds in favor of children of siblings (nephews) of double bond or of one side only.
Preterition: Omission of Forced Heirs
Preterition constitutes the omission of a forced heir in the will, whether intentional or erroneous. This figure produces different effects according to its nature:
Intentional preterition: When the testator consciously omits a legitimary, this one conserves his right to claim the legitimate portion, proportionally reducing the quotas of the instituted heirs.
Erroneous preterition: When the omission is due to ignorance of the existence of the legitimary, it can annul the institution of heir or even the entire will, according to circumstances.
Disinheritance: Founded Deprivation of the Legitimate Portion
Disinheritance represents the legal mechanism by which the testator can deprive a forced heir of their legitimate portion for causes expressly established in the law.
Common causes of disinheritance applicable to all legitimaries:
- Having been condemned for attempting against the life of the testator
- Having calumniously accused the testator of a crime
- Having obliged the testator with violence, fraud or threat to make or modify a will
Specific causes for descendants:
- Having denied alimony to the testator without legitimate motive
- Having mistreated with deeds or gravely insulted with words the testator
Specific causes for ascendants:
- Having lost parental authority according to article 170 of the Civil Code
- Having denied alimony to the descendant without motive
- Having attempted against the life of the other spouse
Did you know that…? Reconciliation Extinguishes Disinheritance
A curious fact is that reconciliation between the offender and the offended leaves the disinheritance without effect. This norm humanizes the legitimary system, allowing restored family ties to prevail over causes of exclusion.
Specific Exclusions in Regional Civil Law
In autonomous communities with their own civil law, the legitimary system presents significant particularities:
Catalonia: The forced heirs are only descendants and, failing them, parents, with a legitimate portion reduced to one quarter of the hereditary value.
Aragon: Only descendants are legitimaries, with a collective legitimate portion of 50% of the hereditary estate.
Galicia: Maintains the system of descendants and surviving spouse, but with a legitimate portion reduced to one quarter of the hereditary value.
The Calculation of the Legitimate Portion: Essential Technical Procedure
The Operations of Computation and Imputation
To determine with precision the amount of the legitimate portion, it is necessary to perform two fundamental technical operations: computation and imputation.
Computation consists of adding to the net value of the relict assets all donations made during the lifetime by the decedent. Article 818 of the Civil Code establishes that “to fix the legitimate portion, attention will be paid to the value of the assets that remain at the death of the testator, with deduction of debts and charges.”
Imputation implies discounting from the calculated legitimate portion the donations and liberalities that the legitimary would have received during the lifetime of the decedent.
Practical Example of Legitimate Portion Calculation
Let us suppose an estate of 300,000 euros with three children as sole forced heirs:
- Relict estate: 200,000 euros
- Donations during lifetime to strangers: 100,000 euros
- Total calculation base: 300,000 euros
- Global legitimate portion of descendants (2/3): 200,000 euros
- Individual legitimate portion per child: 66,666.67 euros
Did you know that…? Debts Reduce the Calculation Base
A circumstance frequently forgotten is that the debts and charges of the decedent reduce the calculation base of the legitimate portion. In the Cela case, the Supreme Court established that it corresponded to the defendants to prove the existence and amount of such obligations for their discount.
Jurisprudential Protection and Procedural Guarantees
Action for Complement of Legitimate Portion
When the legitimate portion is not completely covered, the legitimary has the complement action, which allows claiming the difference until reaching the legal amount. This action has been frequently used by the courts to protect the rights of forced heirs.
Reduction of Inofficious Donations
Donations made during lifetime that prejudice the legitimate portion can be subject to reduction for being inofficious. Article 815 of the Civil Code allows this reduction to protect legitimary rights, beginning with the most recent donations.
Quantitative Intangibility of the Legitimate Portion
The courts have repeatedly established the principle of quantitative intangibility of the legitimate portion, according to which legitimaries have the right not only to the calculated amount, but to receive it with interest from the death of the decedent.
Alerts on Recent Legislative Changes in 2025
Modifications in the Succession System
The year 2025 has brought significant reforms in Spanish succession law. The new Succession Law 2025 introduces significant modifications:
Reduction of terms: The maximum term to accept or renounce an inheritance is reduced to 6 months from notification.
Mandatory mediation: Prior mediation is established as a requirement before going to judicial proceedings in conflicts between heirs.
Digitization of the process: Digital wills are recognized and the Electronic Registry of Last Wills is created.
Courts of Instance and New Competencies
The entry into force of Organic Law 1/2025 has created the Courts of Instance and transformed the Peace Courts into Justice Offices. These changes seek to expedite inheritance procedures and facilitate access to justice in small localities.
Conclusions: The Importance of Knowing and Defending Legitimary Rights
Forced heirs represent a fundamental institution of Spanish succession law that guarantees the protection of the closest family ties. The legitimate portion constitutes an intangible right that cannot be ignored or circumvented through testamentary dispositions contrary to law.
Descendants maintain the predominant position in the legitimary system, with the right to two-thirds of the hereditary estate. Ascendants act subsidiarily when there is no descendancy, while the surviving spouse enjoys specific protection through widowhood usufruct.
The legislative reforms of 2025 are modernizing the succession system, introducing greater procedural agility and adapting to new social and technological realities. However, the protective essence of legitimary rights remains intact.
It is fundamental that potential legitimaries know their rights and do not hesitate to claim them when they are violated. Specialized legal advice is indispensable to navigate through the technical complexity of these matters and guarantee that the rights that cannot be ignored are effectively respected and exercised.
Frequently Asked Questions
1. Can I be disinherited without justified cause?
No. Disinheritance is only valid when it is based on some of the causes expressly established in articles 852-855 of the Civil Code, must be done in a will and clearly express the cause. Without legal justified cause, disinheritance is null and the legitimary conserves their rights.
2. What happens if my father marries for the second time?
The spouse of second marriage acquires widowhood usufruct rights, but you maintain your legitimary rights as descendant in their entirety. You can demand that the spouse’s usufruct be satisfied in capital or determined assets to avoid indefinite co-ownership.
3. Can I renounce the inheritance but conserve the legitimate portion?
No. Renunciation of inheritance is total and includes all succession rights, including the legitimate portion. There is no possibility of partial acceptance of inheritance in Spanish law.
4. Do grandchildren have direct legitimary rights?
Grandchildren only have legitimary rights when their progenitor (child of the decedent) has died before the grandfather, then exercising the right of representation. In this case, they receive the part that would have corresponded to their deceased father.
5. How do the new reforms of 2025 affect my rights as legitimary?
The reforms of 2025 expedite procedures and digitize formalities, but do not modify the essence of legitimary rights. The percentages of legitimate portion and forced heirs remain the same, although with more efficient procedures to claim them.
Next article. Block II. Article I.