Computation and attribution of lifetime gifts: how the forced share is really calculated
The forced share is not calculated on what is left at the date of death alone. What the deceased gave away during their lifetime has to be added back (computation), and each gift has to be charged to one part of the estate (attribution). If any of them goes over the limit, it is cut down. Here is the method, with a worked example.
Three operations that get confused
To know whether a forced heir has received what is due to them, three different things have to be done, in this order: compute, attribute and, where appropriate, cut down. The fourth operation, collation, is something else: it serves to put the forced heirs on an equal footing with one another in the division, not to calculate the forced share.
- Computation (computación, art. 818 CC): adding to the value of the assets left at death, once the debts have been deducted, the value of every gift the deceased made during their lifetime, to children and to strangers alike. The result is the pot on which the three thirds are calculated.
- Attribution (imputación, art. 819 CC): deciding which third each gift is paid out of. Gifts to children are charged to their strict forced share, unless the donor said they were made by way of betterment; gifts to strangers are charged to the freely disposable third.
- Cutting down (reducción, arts. 636, 654 and 820 CC): if the gifts exceed what the deceased was free to give away, they are excessive (inoficiosas) as to that excess and are cut down, starting with legacies and going on to the most recent gifts (art. 656 CC).
Why this matters so much to foreign clients. In England and in most of the United States, what a parent gave away in life is simply gone: the estate is what remains at death. In Spain it is not. Two thirds of the estate are reserved by law for the children — the legítima, or forced share — and that share is worked out on the estate plus everything given away during the deceased’s lifetime. A gift made twenty years ago therefore still affects what each child is owed today.
Computation: what is added back and how it is valued
Every gift is computed, whoever received it and whether or not it is subject to collation: that includes gifts released from collation, gifts to the spouse, to a grandchild or to a third party. The value taken is the value the assets had at the date of the deceased’s death, the criterion the case law applies to article 818, less the deceased’s debts and charges, but not those imposed in the will itself, such as legacies.
What is left out is expenditure that is not a gift: maintenance, education, medical treatment and customary presents (art. 1041 CC), as well as transactions with a genuine price. «Loans» that were never repaid and disguised gifts are computed; and where a property was sold with no real price, the Supreme Court (Tribunal Supremo) also declares the concealed gift void, so the asset returns to the estate.
Attribution: which third each gift is charged to
- Gift to a child with nothing said about it: charged to that child’s strict forced share; any surplus goes to the freely disposable third, and only then to the betterment third if the donor so directed (art. 825 CC requires an express declaration of betterment).
- Gift to a child «by way of betterment»: charged to the betterment third; any excess to the freely disposable third.
- Gift to a stranger (a grandchild whose parent is alive, a nephew or niece, an unmarried partner, a friend): charged to the free third; anything beyond it is excessive.
- Gift to the spouse: to the free third, without prejudice to the spouse’s statutory life interest.
Worked example. Net estate at death: €300,000. During his lifetime the father gave €150,000 to his partner (a stranger to the estate) and €150,000 to one of his children, saying nothing about it. Computable pot: €600,000. Each third is worth €200,000. The gift to the partner (€150,000) fits inside the free third. The gift to the child is charged to that child’s strict forced share: with two children, each is entitled to €100,000 of strict forced share; the child who received the gift has already had €150,000, so takes nothing further on that account, and the other child must receive their full €100,000 out of the assets left at death. Without computation, the child who received nothing would have believed their forced share was half of €100,000. The difference multiplies once there is property involved.
Cutting down excessive gifts
If, after attribution, the gifts turn out to exceed what the deceased was free to dispose of, the excess is excessive (inoficiosa) and the forced heir who has lost out may ask for it to be cut down (arts. 654 and 655 CC). The order is fixed: legacies and testamentary dispositions are cut down first (art. 820 CC), then the gifts, beginning with the most recent (art. 656 CC). The cut is in principle made in kind, and in money where the asset cannot conveniently be divided (art. 821 CC). A recipient who no longer has the asset answers for its value.
A forced heir who has received less than their forced share may claim the shortfall (complemento de legítima, art. 815 CC) without having to contest the will: what is missing is made up at the expense of the others. It is one of the most common claims in practice and one of the most often overlooked, simply because the arithmetic is not understood.
Why the deed of partition usually goes wrong here
It is not unusual for a cuaderno particional, the deed of partition, to deal correctly with collation and forget computation altogether, or to compute only the gifts made to children and not those made to strangers, or to value the gifts as at the date they were made. In one of our cases, the contador-partidor applied different criteria to equivalent gifts received by two of the heirs and by another, in an estate with a net value of more than €3,600,000; the court upheld our opposition and ordered the whole deed to be redone. You can read about it in the case of the wrongly computed gifts.
How we handle it, step by step
Reconstructing the gifts
Deeds, transfers, sales with no real price, payments of other people’s debts: everything the deceased gave away in life, to whoever it went.
Valuing and computing
The value of each gift at the date of death, the debts of the estate and the calculation of the three thirds on the computable pot.
Attributing and spotting excesses
Which third each gift goes to, according to who received it and what the donor said; and which part of it is excessive.
Shortfall or cutting down
A claim for the shortfall in the forced share, or for excessive gifts to be cut down, negotiated first and litigated if need be.
Deadlines worth not letting slip
- The claim for the shortfall in the forced share and the claim to cut down excessive gifts are subject to the general period for personal claims, five years from the moment they can be brought (art. 1964 CC), on the majority view, with qualifications in the case law depending on the case. It is worth acting before what was given away is sold on to third parties.
- Six months for inheritance tax; the lifetime gifts also had their own tax treatment, which is worth reviewing.
Common questions about computation and attribution
What is the difference between computing and collating?
Computing means adding everything given away back into the estate in order to calculate the forced heirs’ shares: it covers every gift. Collating means deducting from one particular forced heir’s share what that heir already received, so as to put the heirs on an equal footing. A gift can be released from collation and still be computed.
My father gave a flat to his partner. Is there anything I can do?
It depends on whether the gift exceeds the freely disposable third once the whole estate has been computed. If it does, the excess is excessive and can be cut down. The full calculation has to be done; looking only at what was left at death is not enough.
At what date are gifts valued?
For computing the forced share, at the date of the deceased’s death. For collation between heirs, at the date of the division. They are different criteria and it is best not to mix them.
The gift was made thirty years ago. Does it still count?
Yes. The Civil Code sets no time limit on computing the deceased’s gifts; what is subject to a limitation period is the claim, which arises on the death.
Do I have to contest the will in order to recover what I am short?
No. If the will is valid but your forced share is not covered, the claim is for the shortfall in the forced share (art. 815 CC), which does not require the will to be annulled.
Where we work
Our office is in Villanueva de la Cañada, and we regularly act in Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón, Brunete, Villanueva del Pardillo, Valdemorillo and the rest of western Madrid. Succession proceedings are heard by the court for the place where the deceased was last domiciled, not where the heirs live: if you live outside the area, or outside Spain, that is no obstacle to our handling the case. This guide forms part of our inheritance and succession practice.
Tell us about your case
If you suspect that lifetime gifts have not been taken into account in your inheritance, bring us whatever you know about them and the deed of partition if there is one. We study every case before taking it on, and we tell you frankly whether the arithmetic has been done properly.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)