Forced heirs are the closest relatives to whom the law reserves a share of the estate that the deceased cannot freely take away from them. That protected share is called the legítima (the forced share). In other words: however much someone may wish to leave their entire estate to a third party, if they have children, parents or a spouse, the law guarantees those relatives a minimum portion. At BBM Abogados, a Santander law firm since 1990, we explain clearly who they are, how much is due to them and what room for manoeuvre you have when making a will.
What are forced heirs?
A forced heir, or legitimario (statutory heir), is a person who, by virtue of their family relationship, is entitled to receive a share of the estate regardless of the testator’s wishes. The Spanish Civil Code (arts. 806 and following) starts from a simple idea: your freedom to distribute your assets on death is not absolute, but is limited by the rights of your closest relatives.
This means that, when you make a will, you cannot freely dispose of your entire estate. One part, the forced share, is reserved by law for these heirs. The other part, the freely disposable portion, you can indeed leave to whomever you wish: a friend, a charity or just one of your children.
It is worth clarifying that we are talking here about Spanish common law (Derecho común), which applies across most of Spain, including Cantabria. Some territories have their own regional succession law (derecho foral) — such as Catalonia, Navarre or the Basque Country — where the rules on the forced share are different. If your case has connections with those territories, it is worth reviewing it in detail.
Who are the forced heirs in Spain?
The law sets out an order. Not everyone inherits at once: the presence of one group can displace the next.
- Children and descendants. They are the first statutory heirs. If a child has died before the testator, their place is taken by their own children (the grandchildren), by right of representation.
- Parents and ascendants. They are only forced heirs when there are no children or descendants. Failing them, the grandparents step in.
- Surviving spouse. The spouse is always granted a forced share, but of a special nature: they do not receive assets outright, but rather in usufruct (the right to use and enjoy them, or to receive the income they generate, without owning them).
Bear in mind that siblings, nieces, nephews and other relatives are not forced heirs. They may inherit if there is no will, or if the testator names them, but the law reserves no forced share for them.
What is the forced share and how is it divided?
The forced share is that minimum portion the law reserves for statutory heirs. Its size depends on who inherits.
Where there are children or descendants, the estate is divided, for the purposes of the forced share, into three thirds:
- The strict forced share. This is divided equally between all the children. It is untouchable: the testator cannot alter it.
- The betterment third (mejora). This also belongs to the children or descendants, but here the testator may distribute it unequally to favour one of them.
- The freely disposable third. The testator may leave this to whomever they wish, whether a relative or not.
So the children’s forced share adds up to two thirds of the estate (the strict share plus the betterment third), and the remaining third is left free.
If there are no descendants, the forced share of the parents and ascendants is half the estate. That portion is reduced to one third if they inherit alongside the surviving spouse.
The surviving spouse has their own forced share in usufruct, which varies according to who they inherit alongside:
- If there are children or descendants: usufruct of the betterment third.
- If there are only ascendants: usufruct of half the estate.
- If there are neither descendants nor ascendants: usufruct of two thirds.
If you are facing a distribution and there is no will, the law sets out a different order; we explain it in our guide on inheritance without a will.
“At BBM Abogados we defend the interests of individuals and businesses in Santander and Cantabria with a close, rigorous and fully transparent approach. If you have doubts about your case, we help you see it clearly.”
Can a forced heir be disinherited?
Yes, but not for just any reason. The law does not allow a statutory heir to be set aside simply because of a poor relationship or a family falling-out. Disinheritance is only valid on the specific statutory grounds set out in the Spanish Civil Code, such as having denied maintenance to the testator, having physically abused them or having seriously insulted them.
To take effect, the disinheritance must be made in a will, expressly stating the legal ground on which it relies. If no ground is stated, or if the disinherited person denies the facts and they cannot be proved, the disinheritance falls away and the statutory heir recovers their forced share.
It is, therefore, an exceptional route to be interpreted strictly. Before attempting to disinherit a child, or defending yourself against a disinheritance you consider unjust, it is worth analysing the case carefully.
What happens if a will infringes the forced share?
The forced share is protected against wills that ignore or cut it back. There are two key mechanisms.
Wrongful omission (preterición) occurs when the testator leaves out of the will a statutory heir who was entitled to inherit (for example, a child who goes unmentioned). Depending on the case, wrongful omission can lead to the distribution being corrected so that the heir receives what is due to them.
The reduction of excessive dispositions (disposiciones inoficiosas) comes into play when the testator has given away too much: if lifetime gifts or legacies exceed the portion they were entitled to dispose of and encroach on the forced share, those dispositions can be reduced as far as necessary to respect the rights of the statutory heirs.
In both cases, the forced heir who has been prejudiced can bring a claim. These disputes tend to be delicate and highly dependent on the specific figures of each estate, so professional analysis is advisable before taking any step.
Protect your estate with BBM Abogados
Understanding who the forced heirs are and how the forced share works is the first step towards making a sound will, or towards claiming what is due to you. Every family and every estate is different, and a small detail can change the outcome of the distribution.
At BBM Abogados we have been supporting families across Santander and the whole of Cantabria with inheritances, wills and succession matters since 1990. You can find out all about our work in the area of succession and inheritance and in our civil law advice. If you would like to know how we approach our fees, we explain it in how much an inheritance solicitor charges.
Do you have questions about your inheritance, or would you like to put your will in order with confidence? Call us on 942 36 10 48 or write to us from our contact page. The first consultation is without obligation.