Forced Heirship in Spain: How It Works and How Foreign Nationals Can Protect Their Estate

Fast Answer: Spanish law reserves two-thirds of a deceased person’s estate for their children (the legítima). This forced heirship rule applies by default unless you make a will with a valid choice of law under EU Regulation 650/2012, selecting a system that permits full testamentary freedom.

What Is Forced Heirship?

Forced heirship (legítimas) is a feature of Spanish civil law that restricts your freedom to distribute your estate. Unlike in England and Wales or most US states, where you can leave your estate to anyone you choose, Spanish law mandates that certain family members receive a minimum share.

This concept exists throughout continental Europe, but Spain’s version is among the most restrictive.

How the Spanish Estate Is Divided

Under the Spanish Civil Code (Código Civil), a deceased person’s estate is divided into three equal parts:

1. Legítima Estricta (Strict Reserved Portion) — One-Third

This must be divided equally among all children. You cannot favour one child over another in this portion. If a child has predeceased you, their share passes to their descendants.

2. Mejora (Improvement Portion) — One-Third

This can be distributed among your children (or descendants) as you choose, but it must go to descendants. You can use this to give more to one child over another.

3. Libre Disposición (Free Portion) — One-Third

This is the only portion you can leave to anyone — a friend, a charity, a non-family member, or a specific child. Complete testamentary freedom applies only to this one-third.

What Rights Does the Surviving Spouse Have?

The surviving spouse does not receive ownership under forced heirship. Instead, they receive a usufruct (right to use and enjoy) over part of the estate:

• If there are children: usufruct over the mejora (one-third)
• If there are no children but there are parents: usufruct over one-half of the estate
• If there are no descendants or ascendants: usufruct over two-thirds of the estate

This means a surviving spouse in Spain has use rights but not ownership — a critical difference from UK or US systems.

Can You Disinherit a Child in Spain?

Yes, but only for specific reasons listed in Articles 848–857 of the Civil Code:

• The heir denied maintenance to the testator
• The heir physically mistreated or seriously insulted the testator
• The heir was convicted of a crime against the testator or their family
• The heir accused the testator of a crime punishable by imprisonment (if false)

The disinheritance must be stated explicitly in the will with the legal ground identified. If a disinherited child challenges it in court and wins, the entire will can be partially invalidated.

How Foreign Nationals Can Avoid Forced Heirship

This is the most important section for our clients. Under EU Succession Regulation 650/2012 (Brussels IV), you can include a choice of law clause in your will, selecting the law of your nationality instead of Spanish law.

UK Nationals

English and Welsh law has no forced heirship. By choosing English law in your Spanish will, you gain complete testamentary freedom over your Spanish assets. Scottish law is slightly different — there are “legal rights” claims by children and spouses, but they are less restrictive than Spanish legítimas.

US Nationals

Most US states follow “freedom of testation” — you can leave your estate to anyone. By choosing the law of your state of nationality, you can avoid Spanish forced heirship. Note: community property states (California, Texas, etc.) have some spousal protections.

Other EU Nationals

Many EU countries have their own forced heirship rules (France, Germany, Italy). The choice of law only helps if your national law is more flexible than Spanish law.

Critical: the choice of law must be made in your Spanish will. Without it, Spanish forced heirship applies by default to all assets in Spain. See our comprehensive guide on forced heirs in Spain.

Regional Variations Within Spain

Spain’s regional foral laws create different forced heirship rules in some autonomous communities:

• Catalonia: children’s legítima is only one-quarter (25%) of the estate — much less restrictive
• Basque Country: forced heirs include all descendants in the line, with specific Basque rules
• Navarra: forced heirship is largely symbolic — a formal mention suffices
• Aragón, Balearic Islands, Galicia: each has its own modifications

The applicable regional law depends on the deceased’s vecindad civil (civil domicile within Spain), not just where the property is located.

Frequently Asked Questions

Can a child waive their forced heirship rights?

Under Spanish law, a living heir cannot waive their future inheritance rights (Article 816 CC). Any such agreement is void. This is a common trap for families trying to plan around forced heirship — the only reliable solution is a choice of law clause.

What if I only have one child?

Forced heirship still applies. Your one child is entitled to two-thirds of the estate (legítima + mejora). You can freely dispose of the remaining one-third.

Does forced heirship apply to non-resident foreigners?

If you die while habitually resident outside Spain, the law of your country of residence applies (unless you made a choice of law). If you die while resident in Spain without a choice of law, Spanish forced heirship applies to your worldwide estate, including your Spanish property.

What happens if my will violates forced heirship rules?

The affected heirs can file a legal action (acción de preterición or acción de reducción) to claim their reserved share. The will is not automatically void — only the provisions that infringe the legítima are adjusted.

Does a power of attorney affect forced heirship?

No. A power of attorney operates during your lifetime. Forced heirship rules apply only after death, through the succession process.

Need personalised advice? Book a consultation or message us on WhatsApp Email Us: marialuisa@costaluzlawyers.es

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Related: Is a Spanish Will Valid in the UK? Cross-Border Estate Planning Explained

For a complete overview of wills and inheritance in Spain, see our Spanish Wills & Testament Guide 2026.