Understanding Forced Heirs in Spanish Inheritance Law

Who Are the Forced Heirs in Spain?

Under the Spanish Civil Code (applicable in most regions), the following are considered forced heirs (herederos forzosos):

• Your Children (and their descendants): Children are the primary forced heirs. If any child predeceases you but leaves children of their own (your grandchildren), those grandchildren step into their parent’s shoes as forced heirs.
  
  

• If No Children, then Parents (and ascendants): If you die without descendants, your surviving parents (or if they’re not alive, your grandparents, etc.) become forced heirs.
  
  

• The Surviving Spouse: The spouse in Spanish law is a bit of a special case – technically a forced heir with regard to certain rights (usually a usufruct right, not full ownership share like children get). We’ll detail this below.
  
  

Notably, other relatives like siblings, nieces/nephews, etc., are not forced heirs under the national law. If you have no spouse, kids, or living parents, you actually have freedom to leave your estate to whomever (and if you don’t, it will eventually go to siblings, etc., by intestacy, but they aren’t “forced” into a share if you had a will).

Bottom line: Forced heirs in Spain = children (or their line), or parents if no children, plus a spouse’s usufruct rights. These people must receive a portion of the estate, as dictated by law.

What Portions Do Forced Heirs Get?

Spanish law reserves a substantial part of the estate for forced heirs. As summarized in the Beginner’s Guide article and reiterated here, in the common Civil Code system the estate is conceptually divided as follows when you have the relevant heirs:

• Children as Forced Heirs: If you have children:
  
  

  • At least one-third of your estate (called the legítima estricta) must go equally to your children. This portion is untouchable and divided among them. If you have, say, three kids, that one-third is split into three equal parts.
    
    

  • Another one-third (the mejora or “improvement” third) is also earmarked for descendants, but you as the testator can allocate it unequally if you want – e.g., give more of it to one particular child who needs it more, or to a grandchild. If you don’t specify, it usually just gets divided equally as well.
    
    

  • The final one-third (tercio de libre disposición) is free for you to leave to anyone you please.
    
    

• In effect, children (collectively) are entitled to two-thirds of the estate by law (one fixed equal third, and one third that is for one or more of them as you decide). The remaining third you can leave to, for example, your spouse or a friend or another relative or charity.
  
  This is why you often hear that in Spain you can only freely dispose of one-third if you have kids – the law ensures the kids as a group get the majority two-thirds share.
  
  

• No Children, Parents as Forced Heirs: If you die without descendants but your mother or father is alive (ascendant heirs):
  
  

  • They are entitled to one-half of your estate if you leave a surviving spouse, or to two-thirds if you have no surviving spouse.
    
    

    • (This scenario is less commonly discussed, but essentially, parents together get half in competition with a spouse, or two-thirds if no spouse, leaving you a free disposal portion of the other half or one-third respectively.)
      
      

• Example: You’re single with no kids, and your elderly father survives you. By law, he must receive half of your estate (legítima for ascendants). The other half you could leave to say, a sibling or anyone. If you didn’t make a will, your dad would get everything by intestacy anyway in this case, but with a will you could at least give away half freely (maybe to a partner or friend) but must leave half to dad.
  
  

• Spouse’s Forced Share (Usufruct): The surviving spouse’s protected share in Spanish law is usually a usufruct right (lifelong right to use assets or get income) rather than outright ownership of a portion, when in presence of other heirs:
  
  

  • If there are children, the spouse is entitled to a usufruct of one-third of the estate (specifically of the portion known as “mejora”). Practically, this often might be satisfied by giving the spouse a life interest in the family home or a portfolio, while the kids are the naked owners.
    
    

  • If there are no children but ascendant parents, the spouse gets a usufruct of one-half of the estate.
    
    

  • If no children or parents, the spouse is essentially the main heir by intestacy (but that’s beyond forced share, that’s just normal inheritance).
    
    

• A usufruct means the spouse can enjoy the assets (e.g., live in the house, collect interest or rent, etc.) for life, but does not have the power to dispose of them (sell or bequeath them) because the underlying ownership is with the children or other heirs. It’s a way the law protects a spouse from being left with nothing, while still preserving most of the capital for the children eventually.
  
  Many wills in Spain for married people with kids will explicitly grant the spouse a usufruct over some part of the estate (often the whole estate or at least the “children’s portions”), and may give the spouse some of the free disposal part outright. There’s also a concept called “cuarta viudal” in some cases (a minimum a widowed spouse can claim if poorly provided for, equal to a quarter of the estate, in certain regions), but the specifics vary.
  
  

In summary, Spanish forced heirship in numbers:

• Children: 1/3 equal among all children (legítima estricta) + 1/3 to children (but you can allocate unevenly among them if you want).
  
  

• Spouse: if children, spouse gets usufruct of that second 1/3 (which overlaps with the children’s mejora portion – i.e., the spouse’s life interest burdens the part that will go to the kids later).
  
  

• If no children: ascendants get 1/2 (with spouse) or 2/3 (without spouse). Spouse if with ascendants gets usufruct of half.
  
  

• Free disposal: generally 1/3 if kids, or more if no kids/parents.
  
  

Why Does Forced Heirship Exist?

It comes from a philosophy of family solidarity in civil law tradition. The law aims to prevent people from disinheriting their immediate family without good reason. It’s rooted in historical ideas that one has a moral duty to provide for one’s bloodline (and spouse).

In Spain, this has been a part of the law for centuries. Many other countries have some form of forced heirship (for example, France, Italy, and many others have similar rules protecting children and spouses).

For heirs, it means they have a right they can claim regardless of what a will says. For testators, it means you must plan within these limits or face your will being partially unenforceable.

Can You Disinherit a Forced Heir?

Generally, no, not without a legally recognized cause. Spanish law does list specific causes where disinheriting a child or parent is allowed – such as if the heir committed a serious crime against you or certain other egregious behaviors (for example, false accusations against the parent, or refusing without reason to support the parent, etc., are some causes). These are hard to prove and relatively rare. Disinheriting a spouse is also possible only in similarly serious scenarios (like separation with cause, etc.).

If someone is disinherited in a will without a valid legal cause, the disinheritance won’t stand – that heir can challenge the will to claim their forced share. Spanish courts would enforce the legítima.

So, practically, unless you have that extraordinary justification, you cannot disinherit your child or parent completely. (You could give them only the bare minimum legítima share, but you can’t give them zero.) It’s different from common law countries where, say, you can leave a child nothing (though they might contest it on other grounds in some places, but not as a guaranteed right).

How Forced Heirship Impacts Your Planning (Scenarios)

• If You’re Married with Children: You might want your spouse to be well taken care of. Many foreigners are surprised that they can’t simply leave everything to the spouse – the kids have rights immediately. One solution under Spanish law is the “widow’s usufruct”. In a will, you could grant your spouse a lifetime usufruct over the whole estate (or over the children’s forced share). The children get the naked ownership but the spouse can use assets for life. This is a common approach: the will might say “I leave my spouse the usufruct of my entire estate, and the bare ownership to my children.” What this effectively does is satisfy the children’s legítima – they get the ownership (but can’t use it until spouse dies), and it gives the spouse security for life. Upon the spouse’s death, the kids then have full ownership. This way, you’re not depriving the kids (they eventually get it all) but you protect the spouse in the meantime. This arrangement is permitted and frequently used. Alternatively, you can use the mejora portion to give more to your spouse or one child, etc.
  
  

• If You’re in a Second Marriage with children from first marriage: This can be tricky. Your children from the first marriage are forced heirs and so is your current spouse (usufruct). Balancing this may require careful will drafting. Perhaps giving the spouse a usufruct of certain assets (like the marital home) and the children the rest. Spanish law would automatically give your children two-thirds and spouse a third usufruct if you did nothing – which might leave your spouse coexisting with your kids in ownership of things. You might consider employing the EU regulation (discussed later) to opt out of Spanish law if you prefer, for example, UK law that might allow you to leave everything to the spouse then to children later. Without that, you have to ensure each gets their due.
  
  

• If You Have No Children: Then your freedom is greater, but if parents are alive, remember they get half or two-thirds. If you wanted to leave most to your spouse, you can only do so fully if your parents are not alive or if you opt for your national law via EU rules (for expats). Otherwise, you’ll have to respect the ascendants’ portion.
  
  

• If You’re Estranged from a Child: Sadly, Spanish law doesn’t let you cut them out just because of hard feelings (unless those feelings are backed by one of the legal disinheritance causes like they did something gravely wrong to you). They will still be entitled to their legítima. Some people in such situations might use the EU law to apply a different system if possible (e.g., an expat Brit might choose English law which has no forced shares, thereby being able to exclude a child – but careful: that can lead to challenges too, and there’s nuance if that violates Spanish public order; generally it’s allowed if you properly choose foreign law).
  
  

Regional Differences (Briefly)

Certain regions in Spain have their own inheritance rules:

• Catalonia: Forced heirship is only 1/4 of the estate for children (instead of 2/3) – much less restrictive. And spouses have different rights (like a right to a portion of the estate or to use the home for a certain period). So in Catalonia, you have more freedom (3/4 of estate free versus 1/3 under state law).
  
  

• Balearic Islands, Navarre, Basque Country, Galicia, etc.: Each has quirks. For example, in Navarre, you can freely dispose of half of your estate and the other half is legitimate; in the Basque Country recently, they even allow a pact to leave everything to the spouse if the kids consent, etc.
  
  

For simplicity, our discussion is based on the main Civil Code that applies in most of Spain (including e.g. Andalusia, Madrid, Valencia, etc.). Always check local law if the deceased was from one of those special regions.

What If You Ignore Forced Heirs in Your Will?

If a will does not respect the forced heir shares, it isn’t automatically invalid in entirety. Instead, what happens is the disadvantaged forced heir can challenge the will after the death to claim their rightful share. The legal term is to “impugn the will for preterition” or to file an action for their legítima. Spanish courts would then enforce a reallocation of assets or impose a debt on the other heirs to satisfy the forced share.

For example, suppose you will everything to your second wife, leaving nothing to your son from a first marriage. When you die, your son can sue to get his forced share. The result likely: the court will grant him whatever fraction of the estate is his legítima (maybe 1/2 if he was an only child in that scenario with no other forced heirs), effectively carving it out from what the wife received. This could mean the son co-owns assets with the wife afterward, or certain assets have to be given entirely to the son to cover his portion, etc. It’s a messy situation best avoided by planning correctly.

It’s worth noting: these forced share rules apply to Spanish estates by default if Spanish law governs the succession. If you’re an expat, you might have the option to choose your home country law (which might have no forced heir rules) – more on that in our article on EU Regulation 650/2012. For Spanish nationals, this is simply the way it is (unless they move abroad and become subject to another law, which is complex and beyond this intro).

Impact on Foreigners and Expats

If you’re a foreign national living in Spain or owning property in Spain:

• By default, if you die while a habitual resident in Spain, Spanish law (and its forced heirship) would apply to your worldwide estate – including your Spanish property, unless you have made a will specifying that your own national law should apply (thanks to EU Regulation 650/2012). So, for example, a British person in Spain can opt for UK law in their will, which does not enforce forced shares, thereby allowing them to distribute their Spanish assets freely (perhaps all to their spouse). But if they don’t explicitly opt, Spanish forced heir rules will apply by default, which could surprise their family.
  
  

• If you’re not habitually resident but just own a holiday home in Spain, then depending on circumstances Spanish law might not govern succession (it could be your home law). However, Spanish inheritance tax still applies regardless of the law governing distribution, but that’s separate from who gets what.
  
  

Many international couples where one partner is Spanish and the other foreign have to navigate these differences. Spanish law will always apply to a Spanish national’s estate unless they have another nationality to choose or unless they were resident elsewhere (Spain doesn’t let its nationals opt for another law except through nationality).

Summing Up Forced Heirship

Key points to remember:

• You cannot freely disinherit your children or parents in Spain without legal cause. They are entitled to a portion (the legítima).
  
  

• The spouse cannot be left out either, due to usufruct rights, though the spouse’s protected share is not outright ownership except when no other close family exists.
  
  

• In practice, most Spaniards structure their wills to comply with these rules – e.g., leaving the legítima to kids, maybe giving the spouse a usufruct or part of the free third, etc. It’s a standard approach and not as restrictive as it sounds because families often want to leave things to their kids and spouse anyway.
  
  

• If you’re from a country with no forced heirship and have a strong preference to distribute your estate differently (like leaving more to your spouse or a particular child or even outside the family), you need to plan accordingly: possibly invoke your national law under EU rules if you’re eligible, or consider lifetime transfers like gifts or joint ownership strategies (though Spain has claw-back provisions for gifts within life if they prejudice the legítima too).
  
  

• Forced heirs in Spain have a right to enforce their share after death. So as an heir, know that if you are a child or spouse who didn’t get what you should, you can make a legal claim. And as a testator, know that trying to flout the rules can lead to family disputes and your will being partially overridden.
  
  

Conclusion: Forced heirship is essentially the law’s safety net for immediate family. It ensures that a sizable chunk of your estate stays in the family bloodline or with your long-term partner. While it may limit complete freedom of testation, it is a core part of Spanish inheritance culture, reflecting a value that family should be provided for. Once you understand the forced heir rules, you can work with them – either by structuring your Spanish will in a compliant way or by using legal mechanisms to opt for a different law if you’re an expat. Always consider getting advice from a notary or lawyer when drafting a will in Spain, especially as an expat, so that you don’t accidentally violate these rules or create unintended consequences. For more in-depth scenarios and solutions (like using Brussels IV for foreigners or life estates for spouses), you might check resources like HerenciasPlus.com or consult an inheritance law expert.

(Up next in this series: a look at the different types of wills in Spain – Notarial vs. Holographic Wills – which will further empower you in estate planning.)