When granting a will in Spain, it is essential to consider the provisions set in the Spanish Civil Code regarding forced heirs, the three parts comprising the estate, etc. In this week’s article, we answer a question that we receive very often in our office: Can I favour a child in a will? Can you leave nothing to a child in Spain?
Inheritances under Spanish Law. Legal regulation. Three portions of the Estate.
To understand the limits and the freedom when granting a will under Spanish law, it is essential to analyse the provisions of art. 806 and following articles of the Spanish Civil Code. Herein are regulated the three thirds in which the estate is divided:
(1/3) Strict legal share: This is the part of the inheritance that corresponds to the forced heirs. In this case, the children.
(1/3) Enhancement share: This is the part that the testator can use to ‘improve’ one or more of his forced heirs, or descendants.
(1/3) Discretionary share: Finally, the last third of the inheritance can be left freely to whoever the testator wishes. Whether it is a forced heir, a neighbour, another relative, etc.
Can I leave nothing to some of my children in my will?
In principle, this is not possible. The Spanish Civil Code establishes that children are forced heirs. Therefore, they are entitled to the legal and enhancement share of the estate. However, as explained in previous articles, in very specific cases (disinheritance, unworthiness to inherit, etc.) it is possible to exclude a child from a will, and for him/her to receive nothing. But it is necessary to study each case in detail, as it is not always simple. And there must be serious and duly accredited circumstances that justify this decision.
However, we must underline that, although it may not seem so, the Spanish Civil Code is quite flexible. And through the enhancement share a discretionary portion, the testator can favour a child in a will, to a large extent, to the detriment of others. Adapting the will and wishes to his/her specific family and personal circumstances. Always within the limits set in the Spanish Civil Code.
The flexibility of the enhancement share, and the discretionary portion.
As said, the discretionary portion and the enhancement share allow the testator to strategically plan the distribution of his/her estate. Let us look at it with an example. Parent with three children. There is a bad relationship with two of them but lacking the necessary gravity to constitute a case of disinheritance or unworthiness to succeed. Despite not being able to exclude these two children from the will, the testator can greatly benefit the remaining child.
How? By awarding him the discretionary portion and the enhancement share. Thus, in practice, the two heirs with whom the testator has a bad relationship would each receive only 11.11% of the inheritance (one third of the legal share). While the other heir would receive his portion of the legal share (11.11%) plus the discretionary share (33.33%) and enhancement share (33.33%). In total, 77.78% of the estate.
Conclusion.
If you want to favour a child in a will, in White-Baos Lawyers we are experts in Inheritance Law, Wills and Inheritance Tax. Do not hesitate to contact us. We will study your case and offer you expert legal advice on the subject.
The information provided in this article is not intended to be legal advice but rather to convey information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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