German and Spanish law differ considerably on this point. Under German law, certain persons have a monetary claim against the heirs. In Spanish law, on the other hand, they are always heirs in part, even if the testator did not want this. This is what Spanish law refers to as the noterbteil (legítima). The testator may not dispose of this part of the deceased's estate; this part is removed from the testator's power of disposal from the outset. The testator can therefore only dispose of part of his estate.
The authorised persons are listed in Article 807 CC. These are children and their descendants as well as the parents and ancestors of the deceased. However, parents and other ancestors are only entitled if there are no descendants. The surviving spouse is also entitled to inherit; you can find out more about their statutory inheritance rights here here a separate article.
The following applies to the most common case, that there are descendants:
The testator, who leaves descendants, can only be informed about freely dispose of one third of his assets, two thirds is reserved for the descendants. But only one third of which is due to the descendants in equal shares (legítima).The other third (mejora) may be distributed among the descendants as the testator sees fit (Art. 808 CC).
Example: A testator leaves behind a daughter who took great care of him and a son who did not take such great care of him. The estate has a total value of 3 million euros. The testator can now leave his daughter both his free portion and the„mejora“ and half of the third that the children are jointly entitled to. The daughter then receives a total of 2.5 million euros, while the son has to make do with 500,000 euros.
The following table is intended to illustrate this better:
| Total estate: 3 million euros | Subsidiary share (total: EUR 2.5 million) | Son's share (total: EUR 0.5 million) |
| One third not available, entitled persons inherit in equal shares (legítima),Art. 932 CC | 500,000 euros | 500,000 euros |
| one third freely available in favour of the descendants (mejora), Art. 823 CC | 1,000,000 euros | – |
| one third in favour of everyone freely available (tercio de libre disposición),Art. 808 para. 4 CC | 1,000,000 euros | – |