Reserved Share

The obligation for the testator to reserve a share of the estate

One of the peculiarities of the Spanish inheritance regime is the obligation for the testator to reserve a share of the estate “legítima” for certain very close relatives called “herederos forzosos” or “legitimarios” (forced heirs).

The Reserved Share can be given in any form, by inheritance, or as a bequest ( legacy), or even as a gift during the testator’s life.

The forced heirs must be named in the last will, even if they have already received their reserved share as a gift during the testator’s life. The failure to mention forced heirs in the testament ( preterición) has some important consequences.

To determine the reserved share, not only must the existing assets at the time of death be taken into account, but also all the gifts that have been given by the deceased during his or her lifetime.

The sum of the value of all of the gifts given and the existing assets in the estate form the basis from which the reserved share is calculated.

If the reserved share is affected by those gifts or dispositions upon death, such gifts or dispositions must be reduced by the clawback. (Reducción de disposiciones inoficiosas).

There is also a clawback among the forced heirs (Colación).

The forced heirs are the descendants, the ascendants and the spouse.

No ascendant can be a forced heir if there is any descendant.

The widow or widower will still be a forced heir even when there are ascendants or descendants of the deceased.

The testator and the forced heirs can not agree during the lifetime of the testator, that the forced heirs will renounce the reserved share, either by receiving any assets as a gift during the testator’s lifetime or in any other way.

The forced heir can ask the other heirs to complete his reserved share if the testator did not do so in their disposition of assets upon death, or ask the beneficiaries of gifts or legacies to do so by way of the clawback

The reserved share will take effect even in such cases when there is no last will and testament and the deceased distributed all their assets during their lifetime by way of gifts. Any forced heir can ask the beneficiaries to complete their reserved share.

The only way the testator can exclude a forced heir from the reserved share is by way of disinheriting them «desheredación»

The reserved share is the same in all regions of Spain apart from the specific territorial regimes of Cataluña, Baleares, Aragón, Basque Country, Navarra, Galicia.

Any Questions?

Contact us for specific personal advice for your individual case