Forced heirship, omission and disinheritance: what a child can claim even if the will says otherwise
Under Spanish common law a testator cannot dispose freely of the whole estate: two thirds are reserved for the children. What the legítima actually is, what happens when a will forgets a child or disinherits one, and how the shortfall is claimed.
What the legítima is and how much it comes to
The legítima, the forced share, is the part of an estate the testator cannot dispose of freely, because the law reserves it to certain relatives, the herederos forzosos or forced heirs (art. 806 CC). This is the single biggest difference between Spanish succession and English or American succession, where an adult child can in principle be left nothing at all. In Spanish common law, which is the law that applies in the Madrid region, the shares are these:
- Children and descendants: two thirds of the estate (art. 808 CC). One third is the strict forced share (legítima estricta), divided equally between the children; the other is the betterment third (mejora), which the testator may distribute freely between children and grandchildren. The remaining third is freely disposable.
- Parents and ascendants, where there are no descendants: half the estate, or a third where they take it alongside the surviving spouse (art. 809 CC).
- Surviving spouse: a usufruct whose extent depends on who else takes the estate; we explain it in the guide to the surviving spouse’s usufruct.
The forced share is calculated on the computable estate: what was left at death, less the debts, plus every gift made during the deceased’s lifetime (art. 818 CC). That calculation is where most mistakes are made, which is why we give it a guide of its own: computation and attribution of lifetime gifts. Nor may the testator burden the forced share with conditions or charges (art. 813 CC), apart from the surviving spouse’s usufruct and the statutory exceptions in favour of children or descendants with a disability (arts. 808 and 782 CC).
Take care if the deceased had the civil residence status (vecindad civil) of a region with its own succession law — Catalonia, Aragon, Navarre, the Basque Country, Galicia or the Balearic Islands: the forced shares there are different, and in some cases much smaller. The first thing we check is which law governs the succession.
Omission: when the will forgets a child
There is omission (preterición) where the will neither mentions a forced heir nor leaves them anything (art. 814 CC). Its effects depend on whether it was deliberate or not:
- Deliberate omission (the testator knew of the child and left them out knowingly): the omitted child is entitled to their strict forced share, and to pay it the appointment of heirs is cut down first, then legacies and betterments.
- Unintentional omission (the child was born or acknowledged later, or the testator did not know they existed): if it affects all the children, every disposition of property in the will is annulled and the intestate succession opens; if it affects only some, the appointment of heirs is annulled and bequests and betterments stand so far as they are not excessive.
The descendants of a child who was not omitted and who died before the testator represent that child in the estate and are not treated as omitted. If the omitted child dies before the testator, the will takes full effect (art. 814 CC).
Disinheritance: only on the statutory grounds, and only if proved
A testator may deprive a child of their forced share, but only on one of the grounds exhaustively listed in the law (arts. 852 to 855 CC) and only by stating it in the will (art. 849 CC). The grounds relating to children include: having refused maintenance to the parent without legitimate reason, having physically mistreated or gravely insulted them, having been convicted of an attempt on their life or that of their family, or having accused them of a serious offence and been convicted of making a false accusation (art. 756 CC).
In recent years the case law of the Supreme Court (Tribunal Supremo) has extended the notion of «physical mistreatment» to psychological mistreatment, including a child’s emotional abandonment of a parent where it is unjustified and serious. It is a line of authority that makes disinheritances possible which previously failed, but it requires proof of specific facts, not merely bad relations.
The burden of proof falls on the heirs who benefit from the disinheritance (art. 850 CC): if the disinherited child denies the ground, it is for the others to establish it. If they fail, the disinheritance is unjustified and the appointment of heirs is annulled so far as it prejudices the disinherited child’s strict forced share (art. 851 CC). The children of the disinherited person take their place and keep their rights to the forced share (art. 857 CC). A later reconciliation between testator and child deprives the disinheritance of effect (art. 856 CC).
How the shortfall is claimed
The most frequent claim is not for annulment of the will but for the shortfall in the forced share (complemento de legítima, art. 815 CC): a forced heir left less than their due asks to be made up, at the expense of the other heirs, legatees and recipients of gifts, in the order the law lays down. There is no need to show that the will is invalid, only that the arithmetic does not come out.
Where the forced share has been eroded by lifetime gifts, the route is cutting down the excessive gifts (arts. 654 et seq. CC). And where the will pays the forced share in particular assets worth less than it, or burdens it with conditions, its inviolability can be invoked.
What we do before suing. We reconstruct the computable estate with all the assets, debts and gifts, calculate the three thirds and compare what you received with what is due to you. That document, which we deliver in writing, is what goes on the table in negotiation and what the claim is built on if one becomes necessary.
How we handle it, step by step
Will, estate and gifts
The will in force, an inventory of assets and debts at the date of death, and every lifetime gift, to children and to third parties.
Calculating the forced share
The computable estate, the three thirds, what each person’s receipts are charged against, and a comparison with what is due to you.
Written opinion
We tell you whether your forced share is covered and, if it is not, how much is missing and who has to pay it. If it is covered, we tell you that too.
The claim
Negotiation with the co-heirs with the figures in hand; if there is no agreement, a claim for the shortfall or to cut down the gifts.
Deadlines worth not letting slip
- The claim for the shortfall in the forced share is subject to the general five-year period (art. 1964 CC) from the moment it can be brought, the case law varying with the circumstances. It is worth acting before the assets are divided up or sold.
- To challenge a disinheritance, the disinherited person must deny the ground; from that point the burden of proof lies with the other heirs. It is best done as soon as the will is known.
- Six months for inheritance tax, even while the forced share is in dispute.
Common questions about forced shares, omission and disinheritance
My father left me only the strict forced share and everything else to my brother. Can I do anything?
If the calculation has been done properly, it is lawful: the testator may favour one child with the betterment third and leave him the freely disposable third as well. What is worth checking is that your strict forced share was calculated on the right estate, lifetime gifts included.
I have been disinherited for «mistreatment». I never laid a finger on my mother. What do I do?
Deny the ground. It will be for your siblings to prove the facts, and if they cannot, the disinheritance is unjustified and you recover your strict forced share. The Supreme Court accepts serious psychological mistreatment, but it requires specific facts, not a poor family atmosphere.
The will does not mention me because my father did not know I existed. What happens?
That is unintentional omission. If you are the only child left out, the appointment of heirs is annulled in order to pay your forced share; if all the children were left out, the dispositions of property are annulled and the intestate succession opens.
Is the forced share paid in money or in assets?
In principle in assets of the estate, and the testator may indicate which, provided their value covers the share. It may be paid in money in the cases the law allows, such as where a business is allocated to one heir (art. 1056 CC) or on the cutting down of indivisible gifts.
We are from Madrid but my father was Catalan. Does that change anything?
It can change everything: if he retained Catalan civil residence status, the children’s forced share is a quarter of the estate, not two thirds. Establishing which law governs the succession is the first thing we do.
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 the will leaves you less than the law guarantees you, or that you have been disinherited without cause, bring us the will and whatever you know about the assets. We study every case before taking it on, and we tell you frankly what you are entitled to.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)