Wills in Spain: how to protect your inheritance and avoid legal errors
What is an inheritance?
The inheritance consists of the set of assets, rights and obligations that belonged to a person who has died and that do not end with their death, as established in art. 659 CC.
Some legal relationships that are extinguished with death are:
- Because they are inherent to the person, fundamental rights and those of personality: right to life, freedom, honor, privacy, self-image, marriage (art. 85 CC), parental authority (art. 169 CC), alimony (arts. 150 and 152 CC), suffrage, nationality and the right to public service.
- Because it has a very personal character, the employment or construction contract (art. 1595 CC), the company (arts. 1680 and 1700 CC), the bailment (art. 1742 CC, made in consideration of the person of the bailor), the deposit (taking into account the provisions of the art. 1778 CC), the life annuity (art. 1808 CC), the real rights of usufruct (art. 513 CC), use and habitation (arts. 525 and 529 CC) and optional rights, such as the purchase option or trial and withdrawal .
On the other hand, the following are not included in the inheritance because they are cases of special succession : noble titles, rural and urban leases and rights over pharmaceutical establishments or tobacco shops , among others.
What is a will?
According to Article 667 of the Civil Code , a will is a single-person legal act by which a person, known as the testator, expresses their wishes regarding the distribution of their assets and rights after their death.
It is important to note that a will is a personal and individual act, and joint or joint wills are expressly prohibited in Article 669 of the Civil Code , meaning that two or more people cannot make a will in the same act.
Who CANNOT make a will in Spain?
According to art. 663 CC, persons under 14 years of age cannot make a will (minors cannot make a will in a holographic will) nor can a person who at the time of making a will be unable to form or express their will.
Types of wills in Spain: common and special, which one is best for you?
A will can be ordinary or special : An ordinary will can be holographic, open or closed.
In a holographic will (art. 678 CC), the testator writes it himself , the requirements being those established by art. 688 CC.
In an open will (art. 679 CC), the testator expresses his last will in the presence of the persons who must authorize the act , who are made aware of what he stipulates.
In a sealed will (art. 680 CC), the testator declares that his last will is contained in the document he presents to the persons who are to authorize the act.
The following will be considered special wills: military wills (art. 716 CC), maritime wills (art. 722 CC) and those made in foreign countries (art. 732 CC).
Is it mandatory to make a will in Spain?
A will is not mandatory , but it is the only valid way to dispose of assets after death, except in regions such as Catalonia and Navarre , where succession agreements and donations mortis causa are accepted, and in Aragon, the Balearic Islands and Galicia , where succession agreements are also accepted.
Is there a limit on wills?
You can make as many wills as you need.
However, the last one will be the only one that is valid.
It is an essentially revocable act, even if the testator provides otherwise, in accordance with art. 737 CC.
What is legitimate?
The legitime is regulated in articles 806 et seq. CC and is defined as the part of the assets that the testator cannot dispose of because the law reserves it for certain heirs, known as forced heirs.
It is calculated on the net value of the deceased's estate , adding collatable donations and deducting debts and charges that are not imposed in the will.
It guarantees that certain close relatives of the deceased, known as forced heirs, have the right to a portion of the estate left by the deceased person.
This concept limits the freedom of the testator to dispose of his assets in their entirety. The legitimate law applies both to inheritances with a will and to inheritances without a will.
Division into categories
It is divided into two categories: the short or strict legitimate share and the long or broad legitimate share.
The strict legitime corresponds to the third of the inheritance that must be allocated to the children and descendants.
On the other hand, the extended inheritance includes the improvement third , which the testator can use to benefit his children or descendants if he so wishes.
The testator can only deprive forced heirs of their legitimate inheritance in specific cases established by law, mainly for:
- Having denied, without legitimate reason, food to the father or ascendant who disinherits him.
- Having mistreated him in action or seriously insulted him in word.
Who are the forced heirs?
Decendents
Children and descendants are entitled to two-thirds of the hereditary estate as their legitimate share , in addition to the improvement third.
In the event of the death of a child , his descendants have the same right that would have corresponded to him.
In the absence of children and descendants , parents and ascendants are entitled to half of the hereditary estate , which is reduced to one third if they are joined by the spouse or descendant of the deceased.
The parents' inheritance is divided equally between them, and in the event of the death of one of them, it belongs to the survivor.
Widowed
The widow or widower becomes a forced heir with the right to a partial usufruct over the inherited assets, not to ownership.
The part of the inheritance that corresponds to him varies depending on who he is with in the succession: if he has children or descendants, he has the right to usufruct of the third destined for the improvement; If it is with parents or ascendants, he has the right to usufruct of half of the inheritance; and if it is with an heir designated by the testator who is a third party, he has the right to usufruct of two thirds of the inheritance.
Protection of the legitimate
The inviolability of the legitimate shares is a fundamental principle in the field of inheritance law that seeks to protect the rights of the forced heirs , also known as legitimate heirs.
This principle establishes that the testator cannot limit, either qualitatively or quantitatively, what the heirs should receive as their legal share.
Qualitative intangibility
Regarding qualitative intangibility, the testator is prohibited from assigning assets or rights with encumbrances, charges or substitutions that affect the legitime of the forced heirs.
Any encumbrance, condition or prohibition imposed to the detriment of the legitimate share is considered null, except in exceptional cases such as the usufruct of the widower or the fideicommissary substitution related to the improvement of art. 824 CC.
Quantitative intangibility
On the other hand, quantitative intangibility guarantees that the testator respects the amount of the statutory shares.
In the event of damage to the legitimate interest, the legitimators have at their disposal quantitative defense actions such as the action to supplement the legitimate interest and the action of reduction.
The latter makes it possible to reduce testamentary provisions that harm the legitimate due to being ineffective or excessive, whether in the face of legacies, donations or other testamentary provisions.
Legitimate complement action
The action for supplementation of the legitime, also known as the "action for complementation of the legitime", is regulated in art. 815 CC.
This action allows a forced heir who has received less than the legally mandated share to request the necessary supplement to reach that amount.
Active legitimation
The right to bring this action lies with the heir who has received some patrimonial attribution from the deceased, whether by act inter vivos or mortis causa , and who considers that said assignment is insufficient to cover his legitimate portion.
passive standing
On the other hand, passive legitimation is directed towards the co-heirs who have received their legitimate share by any title (whether donation or will) and also against the hereditary community before the partition.
It does not apply to those who have renounced the inheritance.
statute of limitations
As for the statute of limitations, there is some debate about it.
In general, the action for supplementation of legitime is considered to be a personal action and, therefore, is subject to the limitation period established in art. 1964. 2 CC , currently set at 5 years.
What happens if there is no will?
In this case, the law establishes that the forced heirs will receive the inheritance first, following the order of priority of art. 913 CC : the children or descendants and, if there are none of these, the ascendants will inherit, followed by the spouse, siblings or relatives and, lastly, the State.
To determine whether or not a will exists, a Death Certificate must be obtained from the Civil Registry.
With this document in hand, you can request a certificate from the Registry of Last Wills and Testaments to verify the existence and validity of any will left by the deceased.
RRYP Global , Family Law Attorneys.
