An estate of €3,600,000, a half-brother and a division that did not add up

Where a family has children from two marriages, gifts made during the deceased’s lifetime to some and not to others, and a widow with a life interest, dividing the estate stops being a formality and becomes a problem of arithmetic. This case shows why it is worth having the contador partidor‘s work reviewed before accepting the cuaderno particional, and not afterwards.

The problem: two gifts, two different criteria

Four sisters, daughters of the deceased’s first marriage, were faced with a deed of partition that did not add up. It had been drawn up by a contador partidor appointed by the court — an accountant-divider named by the judge to draw up the division — and it divided an estate with a net value of more than €3,600,000. Among those with an interest were also the deceased’s second wife, with a widow’s life interest, and a half-brother, the son of that second marriage. The father had made lifetime gifts to both sides of the family. To the four sisters he had given shares in a family company, under two separate deeds: first the bare ownership and, years later, the life interest. To the half-brother, a block of shares in a different company. The deed of partition did not apply the same criterion to one set of gifts as to the other. And since lifetime gifts are the basis on which each heir’s forced share is calculated, treating them unequally did not affect a single line: it pushed the whole division off course.

Computation and collation are not the same thing (and that was the error)

They are two different operations and they are frequently confused, including among professionals:

• Computation — computación, art. 818 CC (the Civil Code) — means adding the value of what was given during the deceased’s lifetime back into the estate in order to calculate how much forced share each forced heir is owed. It affects the calculation for everybody.
• Collation — colación, arts. 1035 et seq. CC — means deducting from one particular heir’s share what that heir has already received from the deceased during their lifetime. It affects only that heir.

Applying one where the other belonged, or applying different criteria to equivalent gifts, is the kind of error that is not visible on a quick reading of the deed and that changes the figures by hundreds of thousands of euros.

What we argued

We opposed the deed of partition on four points, supported by case law of the Tribunal Supremo and of several Audiencias Provinciales:

1. The gift to the half-brother had to be computed in the same way as the others. The accountant had given it more favourable treatment with no justification, and that altered everybody’s forced share.
2. The gifts to the four sisters had to be valued as the bare ownership given at the time, not at a higher value that also included the life interest transferred afterwards under a separate deed.
3. The widow’s life interest had to be capitalised using the correct point in time: the date of the division, not the date of death (art. 839 CC).
4. The terms of the will had to be respected as to the allocation of certain specific assets — a collection of firearms — which the deed divided in a different way.

What the court decided

The court upheld the grounds of opposition raised on behalf of our clients and ordered the contador partidor to redo the deed of partition: correcting the treatment of the gifts to the half-brother and to the sisters themselves, capitalising the widow’s life interest correctly and respecting the terms of the will in the allocation of the assets in dispute. The strict forced share at stake came to more than €1,200,000 divided between the forced heirs.

What you should look at if you are in a similar position

You do not need an estate worth millions for the same thing to happen. If any of the following applies to yours, the deed deserves a second reading:

• There were lifetime gifts to one of the heirs, even years ago and even if «it was all discussed at the time».
• There are children from different marriages.
• There is a surviving spouse with a life interest, and it is not clear how it has been capitalised.
• The gift was made in two stages — bare ownership first, life interest later — which is where valuations most often go wrong.
• There are companies or a family business among the assets.

Once the deed has been accepted, undoing it is far harder. The moment to look at it is before signing.

Results obtained in one particular set of proceedings. Every matter is different and past results neither guarantee nor indicate future results. The details have been anonymised: no names of the parties, no case number and no identifiable assets appear.