Estate distribution and the deed of partition: how an estate is divided and how a bad division is challenged

What the partition is and what the deed contains

The partition (partición) is the operation that brings the co-ownership of an estate to an end: it turns each heir’s abstract share («a third of the estate») into particular assets («the flat in Calle Olivar and €40,000»). It is recorded in the cuaderno particional, the deed of partition, which must contain, in this order: the inventory of assets and rights, the list of debts and charges, the valuation of each item, the account (net estate, collation and computation of lifetime gifts, forced shares, winding-up of the matrimonial property regime where there was one), the calculation of each heir’s entitlement and the allocation of assets to each of them.

A well-drawn deed is a long and technical document. A badly drawn one looks exactly the same, which is why it gets signed. Almost all the mistakes are in three places: valuations that are out of date or self-serving, lifetime gifts left out of account, and the estate’s debts wrongly dealt with (who advanced what, funeral expenses, taxes, loans).

Who may carry out the division

• The testator, in the will or in a separate document (art. 1056 CC). Their division stands unless it prejudices the forced shares.
• The testamentary contador-partidor, the person the testator appointed to divide the estate (art. 1057 CC). They act alone, without needing the heirs’ consent, but within the limits of the will and of the law; winding up the community of acquests, by contrast, requires the surviving spouse’s participation.
• The heirs, by agreement (art. 1058 CC): the most common route and the cheapest when it works. Unanimity is enough and, where there is property, a public deed so that it can be registered.
• A court-appointed contador-partidor dativo: where there is neither agreement nor a testamentary appointee, heirs representing at least 50% of the estate may ask the notary or the court registrar to appoint one (art. 1057.2 CC). Their division needs notarial or judicial approval, unless all the heirs confirm it.
• The court, through the procedure for judicial division of an estate (arts. 782 to 789 of the Civil Procedure Act, LEC), where none of the above works.

Where the main asset is a flat or anything else that is indivisible, it may be allocated to one heir who compensates the others in money; and it takes only one heir to ask for it to be sold at public auction (art. 1062 CC). If the estate has already been divided and the flat ended up in the names of all of them, the way out of co-ownership is no longer the partition but ending the co-ownership.

How to review a deed before signing it

This is the decisive moment: a signed partition is undone only in serious cases. What we always check:

• That the inventory is complete: accounts, funds, policies with a named beneficiary, vehicles, property outside Madrid, shares in family companies, debts owed to the deceased.
• That the valuations are market valuations at the right date, and that the properties allocated to one heir and another have been valued on the same basis.
• That lifetime gifts have been computed and collated, on the correct basis for each operation (see the guides to collation and to computation and attribution).
• That the community of acquests was wound up first, and properly: the surviving spouse’s half is not part of the estate.
• That the forced shares are covered and that the surviving spouse’s usufruct has been valued or commuted correctly.
• That the parcels are homogeneous (art. 1061 CC): so far as possible, each heir should receive assets of the same kind, not all the cash to one and all the property to another.

What to do when the division does not add up

Opposition to the contador-partidor‘s deed

In a judicial division, once the appointed accountant files the deed, the court registrar serves it on the parties, who have ten working days to file opposition (art. 787 LEC). If nobody opposes it, it is approved. If opposition is filed, a hearing is convened; failing agreement there, the issue is decided under the procedure for the juicio verbal, the simplified civil trial. Opposition has to be specific: which item, why, and with what alternative figure.

Rescission for prejudice

A completed partition may be rescinded where one of the heirs received assets worth more than a quarter less than what was due to them (art. 1074 CC), except a partition made by the testator, which can be challenged only if it prejudices the forced share or if it is established that their intention was otherwise (art. 1075 CC). The claim lasts four years from the partition (art. 1076 CC), and the defendant heir can avoid rescission by paying the difference in money (art. 1077 CC).

Supplementing and adding to the division

If assets come to light that were not included, a supplementary partition is made without undoing the first one (art. 1079 CC). If the error was in the forced share, the route is the claim for the shortfall (art. 815 CC). If the division was carried out without one of the heirs, it is not undone unless the others acted in bad faith or by deceit, in which case they must pay that heir their share (art. 1080 CC). If it was carried out with someone believed to be an heir who was not, it is void (art. 1081 CC).

Judicial division of an estate, step by step

Any heir may apply for it where there is no agreement and no contador-partidor with powers to act (art. 782 LEC). The court convenes the heirs to a meeting to appoint an accountant and, where appropriate, valuers; failing agreement, it appoints them by lot (art. 784 LEC). The accountant carries out the division and files the deed; the opposition stage described above follows and, once the deed is approved, it is formalised before a notary and the assets are handed over. Protective measures over the estate can be applied for from the outset to prevent assets from disappearing (art. 792 LEC). It is a long procedure, and how long depends on the court’s workload and on how complex the estate is, but it is the only way out when one heir blocks everything.

Deadlines worth not letting slip

• Ten working days to oppose the contador-partidor‘s deed in a judicial division (art. 787 LEC). Miss it and the deed is approved.
• Four years to seek rescission for prejudice of a partition already carried out (art. 1076 CC).
• Six months for inheritance tax: it can be paid without a partition, on each heir’s notional share, so as not to lose the deadline.

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.