Are children also entitled to a compulsory portion under Spanish inheritance law?
Spanish inheritance law regulates the compulsory participation of children in the estate differently to German inheritance law. German inheritance law only gives children entitled to a compulsory portion a claim to payment of a certain amount of money, the amount of which depends on the compulsory portion and the value of the estate assets. Spanish inheritance law, on the other hand, assigns the children a real share in the estate. In Spanish, this minimum participation in the estate is called „legítima“. In German literature on Spanish inheritance law, this is referred to as „Noterbrecht“ or „Pflichterbrecht“ and „Noterben“ or „Pflichterben“. The in rem participation in the estate goes hand in hand with the fact that the noteri heirs are members of the Spanish community of heirs. Those entitled to a compulsory portion under German inheritance law, on the other hand, do not become members of the community of heirs.
The Spanish law of intestate succession is regulated in Sécion 5 Códgio Civil (Section 5 of the Spanish Civil Code). However, some autonomous regions of Spain have their own regulations (Derecho Foral), which take precedence over the regulations of general Spanish inheritance law under the Códgio Civil. For example, the Balearic Islands also have special regulations regarding the compulsory portion, with different regulations for the islands of Ibiza/Formentera, Mallorca and Menorca. Catalonia (Cataluña), Galicia (Galicia), Navarra (Comunidad Foral de Navarra) and the Basque Country (País Vasco) also have their own foral laws, particularly with regard to inheritance law and the right to a compulsory portion.
What is the children's compulsory inheritance entitlement under general Spanish inheritance law?
As can be seen from the legal provisions in Sécion 5 Códgio Civil (Section 5 of the Spanish Civil Code), the children's compulsory inheritance shares are very high. The children have a 2/3 share in the estate as compulsory heirs. Disinheritance as under German law and a reference to a mere monetary claim against the heir is not possible under Spanish inheritance law. If the testator appoints another person as heir, the children and this person must form a community of heirs.
The Spanish compulsory inheritance law for children distinguishes between three parts of the estate. The testator cannot dispose of the first third at all. In this respect, the testator's freedom to make a will is restricted. If the testator has several children, they receive an equal share of the strict intestate portion (legítima estricta, Art. 932 CC).
The testator can only dispose of the second third in favour of his children or descendants (Art. 823 CC). The testator can therefore make different provisions for the children in this respect. Bequests or conditions that restrict the children are only permissible if the restriction is in favour of another heir or their descendants (Art. 824 CC). However, the improvement of a descendant is encumbered with a usufruct of the spouse entitled to a compulsory inheritance (Art. 834 CC).
Under Spanish inheritance law, the testator may freely dispose of the last third of the estate (Art. 808 para. 4 CC). This is referred to as the free third (tercio de libre disposición).
Example: The widowed testator E leaves behind a son S and a daughter T. The estate includes a property worth approximately €1 million and a bank account with a balance of €200,000. In a will, the testator has only designated his daughter as his heir.
E cannot dispose of the first third of € 400,000.00. It is to be divided equally between his children. S and T therefore each receive a share worth € 200,000.00. E can dispose of the second third (€ 400,000.00) in favour of a descendant. As T is a descendant of E, E can allocate the second third in full to T. S therefore receives nothing from this. E is also free to dispose of the remaining third and is not prevented from allocating this third to T as well. As a result, S is to participate in the estate as a notary heir to the value of € 200,000.00. The fact that T was not included in E's will does not invalidate the will, but rather leads to a reduction of the inheritance within the framework of the division of the estate. The estate could therefore be divided in such a way that T receives the property and S the bank balance.
In accordance with Art. 818 CC (Códgio Civil, Spanish Civil Code), lifetime gifts (donatum) must be added to the value of the net estate (relictum) under certain conditions in order to determine the notarial portion or thirds of the estate. To determine the net estate, all estate assets must be taken into account and liabilities and costs deducted. The value at the time of the inheritance is decisive. Articles 1035 to 1050 of the CC (Códgio Civil, Spanish Civil Code) regulate when a lifetime gift is to be taken into account when calculating the compulsory portion of the estate. Unlike in Germany, gifts are taken into account without a time limit.
Are parents and grandparents also entitled to a compulsory portion under general Spanish inheritance law?
If the deceased is not inherited by children or other descendants, the parents and other ancestors (ascendants) also have a compulsory portion in accordance with Art. 807 No. 3 CC (Códgio Civil, Spanish Civil Code).
The compulsory portion for parents and ancestors is half of the estate. However, parents and grandparents are only entitled to a compulsory portion if the deceased had no descendants. If the deceased had no children but was married, the parents' or grandparents' compulsory share is 1/3 of the estate. The parents divide this share so that each parent receives either 1/4 or, in addition to a spouse, 1/6 as a compulsory inheritance. If one parent is already deceased, the other parent receives the compulsory portion alone. Grandparents only receive a compulsory portion if neither parent is still alive. If both maternal and paternal grandparents are alive, the paternal line and the maternal line each receive half of the compulsory portion. If both grandparents of a line are alive, they share half again.
How high is the spouse's compulsory portion under general Spanish inheritance law?
According to Art. 807 No. 3 CC (Códgio Civil, Spanish Civil Code), the spouse is also entitled to a compulsory portion. However, according to the Spanish Civil Code, the spouse's compulsory portion is significantly smaller than the children's compulsory portion. In addition to children and other descendants, the spouse only receives a usufruct, and only to the so-called improvement third, Art. 834 CC (Códgio Civil, Spanish Civil Code).
If there are no children or other descendants, the surviving spouse receives usufruct over half of the estate, Art. 837 CC. If there are no children, other descendants or ancestors, the spouse inherits usufruct of two thirds of the estate, Art. 838 CC. The spouse's compulsory portion under Spanish inheritance law is somewhat more similar to the German compulsory portion claim, as the heirs can demand that the surviving spouse pay off the usufruct so that the spouse no longer participates in the estate (Art. 839 CC). To this end, the heirs must allocate an annuity, the proceeds of certain assets or money to the surviving spouse.
If the spouses are separated, there is no entitlement, Art. 834 CC. Compliance with certain formalities is not a prerequisite for separation in this sense.
Due to the relatively small compulsory portion of the surviving spouse under Spanish inheritance law, the provisions on the matrimonial property regime are usually of greater importance for the surviving spouse in the event of inheritance. If the spouses were married under the community of property regime (sociedad de gananciales), the surviving spouse may be entitled to up to half of the deceased's assets simply because the community of property regime has ended.
The differences between German and Spanish compulsory portion law are considerable. Germans are usually unaware of the mandatory participation of the children and even the parents of the deceased if he leaves no children. Germans who move their habitual residence to Spain are therefore advised to organise their estate in a will and to seek advice from a specialist. We will be happy to advise you on the drafting of wills relating to Spain. We will discuss the various options with you in detail. We draft wills for you that take into account your family situation, the centre of your life and the fact that you have assets in different countries. Our team includes experienced German and Spanish lawyers specialising in international, Spanish and German inheritance law. We have excellent contacts with tax advisors and notaries in Spain, with whom we co-operate on a regular basis.