Forced Heirship in Spain: What the Legítima Means for Your Estate

What Is the Legítima?

The legítima (forced share) is the portion of a Spanish estate that the testator — the person making the will — cannot freely dispose of. Certain close relatives have a legally protected entitlement to this share regardless of the content of the will.

This is fundamentally different from the English or American testamentary tradition, where a person generally has complete freedom to leave their assets to anyone they choose. Spain, like Germany, France, and most civil law systems, reserves a portion for the family.

If a will ignores the legítima, the protected heirs can challenge the will and reclaim their share through the courts (acción de reducción de legados y donaciones).

Who Is Entitled to a Forced Share?

The Three Thirds of a Spanish Estate

Spanish inheritance law divides the estate into three equal portions when children survive:

1. Legítima estricta (strict forced share, one-third): must pass to the children in equal shares and cannot be diverted
2. Tercio de mejora (improvement third, one-third): must pass to descendants (children or grandchildren), but the testator can choose which descendants get it — allowing one child to receive more than another
3. Tercio de libre disposición (free third, one-third): can be left to anyone — a friend, a charity, a non-family heir

So in practice, under Spanish law, at most one-third of your estate is truly free. Two-thirds must stay within the family line.

Practical Implications for Non-Resident Property Owners

For a British owner of a Mallorca villa who wants to leave the property entirely to one adult child (and nothing to another, or to a partner rather than children), Spanish forced heirship could frustrate this intention if Spanish law applies.

Example: a British widow owns a €700,000 Mallorca property and has two adult children. Under Spanish law, her children are collectively entitled to two-thirds (€467,000) of her estate. She cannot simply leave the entire property to one child or to her new partner.

This is where EU Succession Regulation 650/2012 becomes critical.

Opting Out: EU Succession Regulation 650/2012

The EU Succession Regulation allows any person to make an election in their will that the law of their nationality governs the succession of their entire estate. This election overrides the default rule (which applies the law of habitual residence at death).

For non-EU nationals (UK post-Brexit, US, Canadian, Swiss, Australian), the position is slightly different — but Spain continues to apply equivalent treatment in practice, treating the EU-framework choice-of-law approach as valid where it was already established.

What this means:

• A British national can elect that English law governs their estate, including the Mallorca property. English law has no forced heirship for children — only limited claims by financial dependants. They can leave the Mallorca property to anyone.
• A German national can elect that German law governs. Germany also has forced heirship (Pflichtteil), similar to Spain's — so a German national gains little benefit from a law-of-nationality election on this specific issue.
• An American or Canadian national can elect their home-state law. Most US states and all Canadian provinces have no forced heirship for adult independent children.

Limits to the Choice of Law

The ability to choose your home country's law is not absolute. Spanish courts retain the ability to apply their own overriding mandatory rules (leyes de policía) and public policy (ordre public) exceptions in extreme cases. In practice, these exceptions are rarely invoked in the context of ordinary private family estate planning.

More practically: the choice of law affects who inherits and in what shares — it does not affect Spanish inheritance tax. Your heirs will still file Modelo 650 with the ATIB regardless of which country's succession law applies.

For Residents: Spanish Rules Apply by Default

If you have become a Spanish tax resident — or are habitually resident in Spain at the time of death — Spanish succession law applies by default to your worldwide estate, unless you have made a valid law-of-nationality election. Long-term Mallorca residents who did not make this election in their will may find that Spanish forced heirship applies even to their foreign assets, to the extent that Spanish courts have jurisdiction.

Summary: Key Takeaways

• Spain's legítima gives children two-thirds of the estate as a protected minimum
• Only one-third of a Spanish estate is freely disposable under Spanish law
• Non-residents can opt out by choosing their home country's law in their will under EU Succession Regulation 650/2012
• British, American, and Canadian nationals gain the most from this election, as their home laws generally have no or limited forced heirship
• The election must be made expressly in a will — it does not arise automatically
• Tax obligations are unaffected by the choice of law election