Spanish Forced Shares and a UK Will: When the Children Can Claim

When do Spanish forced shares apply to a UK will?

Spanish forced shares (legítima, often called forced heirship in English) apply only where Spanish law governs the succession, or the part of it that concerns the Spanish property. The Succession Regulation (sometimes called Brussels IV) decides this for Spanish notaries, land registrars and courts. The law that governs the succession also governs the forced shares, which the Regulation calls reserved shares (Succession Regulation art. 23(2)(h)).

The starting point is the law of the State where the deceased had their habitual residence at death (art. 21(1)). If the deceased was manifestly more closely connected with another State, that State's law applies instead (art. 21(2)). A person may instead choose the law of a State whose nationality they hold, either when making the choice or at death (art. 22(1)).

Where the deceased lived in England or Wales and the will chose no law, the law of England and Wales applies, but English law refers land to the law of where it lies. Spanish notaries and land registrars follow that referral back (renvoi) for the Spanish property, so Spanish law governs it (art. 34(1)(a)). Spanish legal writers debate the resulting split of the estate.

Where the will validly chose the law of the deceased's nationality, that law governs the whole succession and no renvoi applies (art. 34(2)). The choice of the law of England and Wales therefore keeps Spanish forced shares out. The choice must be made expressly in a will, or be shown by the will's terms (art. 22(2)). The Regulation does not require it to be in a Spanish will. A will made before 17 August 2015 under the law the testator could have chosen is treated as choosing that law (art. 83(4)).

Under the law of England and Wales, certain family members and dependants can apply to an English court for reasonable financial provision, but only where the deceased died domiciled in England and Wales (Inheritance (Provision for Family and Dependants) Act 1975 s.1(1)). Domicile is a succession test here; it is not the test for UK inheritance tax.

Who are the forced heirs, and how large are the shares?

Under the Civil Code the forced share is the part of the estate the testator cannot dispose of, because the law reserves it for certain heirs, called forced heirs (herederos forzosos in the Code) (Código Civil art. 806). They are the children and descendants; failing them, the parents and ascendants; and the surviving spouse, in the way the Code sets out (art. 807).

The children's forced share is two thirds of the estate. The testator may give one of those two thirds to one or more of the children or descendants as an extra share, called the mejora. The remaining third is free (art. 808). The parents' forced share is half of the estate, or one third where they inherit alongside the surviving spouse (art. 809).

A surviving spouse who was not legally or in fact separated from the deceased has a life interest (usufructo), not ownership. Alongside children, it is a life interest in the mejora third (art. 834). Alongside parents but no descendants, it is a life interest in half of the estate (art. 837), and with neither, in two thirds (art. 838). The heirs may buy out the life interest with an annuity, the income of particular assets or a capital sum, by agreement or by court order (art. 839).

The share is worked out on the value of the estate at death, less debts and charges, with certain earlier gifts added back (art. 818). The testator cannot take the forced share away, or burden it with conditions, except where the law allows (art. 813).

Do Catalonia and the Balearic Islands follow different rules?

Several Spanish regions have their own civil law of succession, and Spain's internal rules decide which one applies (Succession Regulation art. 36(1)). Those internal rules turn on a status called vecindad civil (Código Civil art. 16(1)), which a foreign national acquires only on becoming Spanish (arts 14 and 15). No text read for this guide settles which regional law then applies to a foreign deceased's Spanish property. The examples below show how far the answer can differ.

In Catalonia the forced share is one quarter of the estate, shared equally by all the children, and it is a right to a value rather than to particular assets (Catalan Civil Code arts 451-1, 451-3 and 451-5). Gifts made in the ten years before death, other than customary presents, are added to the estate for the calculation, and gifts counted towards the forced share are added whatever their date (art. 451-5). The claim expires ten years after the death (art. 451-27).

In Mallorca and Menorca the children's forced share is one third of the estate if there are four children or fewer, and half if there are more (Balearic Civil Law Compilation, Compilación de Derecho Civil de las Islas Baleares, arts 42 and 65). A surviving spouse alongside descendants has a life interest in half of the estate (art. 45). In Ibiza and Formentera the forced heirs are the children and the parents, with the same one-third or one-half share for the children (art. 79).

What happens if the will leaves a forced heir less?

The will is not void. A forced heir who received less than the forced share may ask for the shortfall to be made up (Código Civil art. 815), and gifts in the will that cut into forced shares are reduced at the forced heirs' request (art. 817). Until a forced heir asks, the will takes effect as written.

Leaving a forced heir out of the will altogether does not remove the forced share (art. 814). Where children were left out unintentionally and the will names the spouse as heir, that appointment is cut back only as far as it harms the forced shares (art. 814).

A forced heir can be disinherited only for a cause set out in the law, and only in a will that states the cause (arts 848 and 849). For children the causes include refusing maintenance to the parent without a legitimate reason, and physical ill-treatment or serious verbal abuse (art. 853). Catalan law adds a lasting absence of family relationship caused only by the heir (Catalan Civil Code art. 451-17(2)(e)).

Catalan law sets a ten-year limit for the claim (art. 451-27). The Civil Code articles on forced shares set no specific period for the claim; how long a claim stays open under the Code is a question for an adviser.

Common errors about forced shares

"Spanish law is the default unless the UK will elected English law." Under the Succession Regulation the default is the law of the last habitual residence (art. 21), and a UK national can choose only the law of their nationality (art. 22). For a UK-resident deceased, Spanish notaries and land registrars apply Spanish law to the Spanish land under art. 34.1(a) unless the will validly chose English law.

"Without a Spanish will, Spanish forced heirship applies." The choice of law can be made in any will, in a declaration in the form of a disposition of property upon death (Succession Regulation art. 22(2)). For a deceased who lived in England or Wales and chose no law, Spanish law reaches the Spanish property through renvoi (art. 34(1)(a)), not because the will was made outside Spain.

"Forced heirship takes two thirds from the spouse automatically." A forced heir who receives less must claim the shortfall, and the will stands until then (Código Civil arts 815 and 817). Under the Civil Code a surviving spouse alongside children has a life interest in one third, not ownership (art. 834).