Personal relationships and family
Economic marital regime
Marriage not only gives rise to a series of personal effects between the spouses, but also has significant consequences for their assets, known as the 'economic effects of marriage'.
The law establishes a number of standards to regulate these economic effects, some of which are mandatory (and cannot be modified) while others are supplementary, and may be modified as voluntarily decided by the spouses, tailored to their needs in the form of prenuptial agreements. Remember that if you have any doubts, the best course of action is to seek advice from a notary.
Desde el 30 de abril de 2021 los notarios pueden encargase, si usted lo desea, de hacer el expediente matrimonial que necesitará para contraer matrimonio.
Así, si desea tramitar un expediente matrimonial ante notario deberá realizar una solicitud al colegio notarial de la comunidad autónoma en la que esté empadronado al menos uno de los miembros de la pareja. Pinchando aquí puede ver la lista de colegios notariales, sus páginas web y sus teléfonos. Los colegios han habilitado un sistema para atender estas peticiones. Pinchar aquí: https://www.notariado.org/portal/colegios-notariales.
El notario, como funcionario público y autoridad reconocida, deberá comprobar que los futuros contrayentes tienen capacidad para contraer matrimonio; que no existen impedimentos, tales como que sean menores de edad (salvo los emancipados), o que estén casados con otras personas; o, en su caso, la posible dispensa de los impedimentos. Así mismo, deberá asegurarse que no se trata de un matrimonio simulado. Además, determinará el régimen económico aplicable al matrimonio y la vecindad civil de los contrayentes.
Esta reforma refuerza la consideración del notario como autoridad, que ya fue puesta de manifiesto con la entrada en vigor de la Ley de Jurisdicción Voluntaria, en julio de 2015, de la que deriva la medida.
Desde finales de julio de 2015 es posible casarse ante notario. Al igual que en todos los matrimonios civiles, el notario lee ante la pareja los artículos 66, 67 y 68 del Código Civil. Tras darse el “sí quiero”, el notario los declarará unidos en matrimonio, y se procederá a la firma de la escritura pública de matrimonio en presencia de dos testigos. Posteriormente, el notario remitirá una copia al Registro Civil.
Separaciones y divorcios
Los notarios pueden autorizar separaciones y divorcios de mutuo acuerdo, siempre que los cónyuges no tengan hijos menores a su cargo o personas con la capacidad judicialmente modificada. En la separación o divorcio ante notario, como en la judicial, es necesaria la intervención previa de un abogado y la existencia de un convenio regulador acordado por las partes. En ese convenio regulador, además de hacer constar la suspensión de la vida en común, se regula la situación patrimonial de la pareja y cómo quedan las relaciones con los hijos comunes. El notario comprobará y dará fe de que los cónyuges son plenamente conscientes del convenio acordado y de que es equitativo para los dos miembros de la pareja, es decir, que no incluye agravios que perjudiquen a uno de ellos. Este convenio deberá ser aceptado por los hijos mayores, de haberlos, si todavía fueran económicamente dependientes. Una vez definidos y aclarados todos estos aspectos se otorgará la escritura Y elevará a público ante notario el convenio regulador acordado, lo que lo convertirá en título de ejecución forzosa en caso de que fuera necesario.
What are prenuptial agreements?
They are the contracts that can be agreed before or after the marriage to establish the regulations that are going to govern the economic aspect of the marriage, in accordance with the law in place. In order to be valid, they must be drawn up in a public notarial instrument, with impartial advice from a notary, who must indicate the most appropriate way to reflect the will of the spouses, as well as the legally established limitations.
Do such agreements have to be registered?
The agreements must be registered at the Civil Register, together with the taking of reason of the marriage ceremony, in order to take effect before third parties.
An example of limitation of liability when requesting a credit: if the person applying for it is married under the joint property system, the communally held assets could be liable for any debt. Meanwhile, if the applicant is married under the separate assets system, then a debt may be collected only against the private assets of the spouse who owes the money, and never those of his or her partner.
What are the most common agreements?
Although such agreements may cover all manner of clauses corresponding to the marriage, and may involve not only the spouses but also parents or other individuals, they typically establish nothing more than the economic marital regime.
The fiancés or spouses may opt for one of the regimes governed by the Civil Code, or tailor their own marital regime, subject to no other limitations than the requirement that their equal rights be guaranteed.
- Spanish National Law establishes that the joint asset regime will apply not only if it has been agreed in a contract, but also in the event of marriage without any prenuptial agreement. Under this system all assets acquired by both spouses are communally owned, whether they were as consideration or in payment for their work, except for exclusively acquired assets which are the sole property of each of the spouses, and those already owned before marriage, inheritances and donations.
- The separation of property regime is based on an absolute independence of the spouses in the economic plane, although when it comes to dispose of the family dwelling it is necessary to have the other spouse. In order to establish the separate property regime under Spanish National Law, then a contract must be signed, although in Catalonia, for example, in the absence of agreement, this is the economic system that will always govern the marriage.
- The participation regime is applied only when it is registered at the Civil Register by the spouses by means of a contract. It functions as a separate asset regime, although when it is dissolved each spouse shares with the other any increase or reduction in their respective assets.
When can prenuptial agreements be established?
They can be arranged before or even after marriage, and as often as desired.
Before marriage: If arranged beforehand, the economic regime agreed will take effect only once the marriage ceremony is performed, which must be within one year.
After marriage: The effects will begin at the point at which the agreement is signed, although a supplementary legal regime will have applied from the marriage ceremony up until the execution of the agreement (generally, the joint assets system), and this will then need to be settled.
Differences between National Law and Regional Law
Spain has a National Law system that applies throughout most of the country, and Regional Laws specific to certain regions. The areas where these special marital standards apply are: Aragon, Balearic Islands, Catalonia, Navarre, Valencia and a part of the province of Biscay.
In Catalonia and the Balearic Islands the system is that, in the absence of an agreement, the separate asset regime will apply, while in Biscay, in the absence of a pact, that of formal communication, by virtue of which the assets that each of them had before and during the marriage, including those that had been inherited or given away, will be made common, although, in marriage, only There is a 'potential communication' that is not consolidated until the dissolution of marriage.
Wills and heritages
When considering making a will, people often wonder whether it is necessary to turn to a notary, or if it can be drawn up without their advice. Both are possible approaches, but before reaching a decision it is better to understand the available options and the benefits and drawbacks of each one.
Types of will: what is needed to make one
Aside from certain very seldom used forms (military and maritime wills, and closed notarial wills), there are two types of will that can be drawn up: holographic and open notarial wills.
- The holographic will: this is a will drawn up by the testator himself, written in his own hand, stating the year, month and day when it is written. The absence of any of these requirements or of the signature of the testator makes the will null and void.
This type of will raises a series of problems: firstly, the lack of technical advice often makes these wills null and void. Meanwhile, debates typically ensue as to the capacity of the testator when making the will. Furthermore, when the testator dies the heirs are required to follow a complex procedure to confirm the authenticity of the will and record it in the notarial protocol, all of which makes the process difficult and more expensive for them.
Meanwhile, the will could easily be lost, or a relative not benefiting by it could find and destroy it, making it almost impossible for the other heirs to prove that it existed. In any event, a holographic will may prove useful in exceptional circumstances of urgency or situations of risk. When drawing up a holographic will, it should be recalled that it must be written in its entirety by the testator in his own hand, and signed by him, and must include the date (year, month and day). Any words crossed out, amended or inserted between the lines must be signed in confirmation by the testator.
- The open notarial will: this is practically the only type of will made these days, given the huge benefits it offers compared with all others.It serves to confirm the last will and testament, in an authentic instrument drawn up before a notary, allowing the testator to benefit from notarial consultancy and advice, and the certainty that the clauses of the will are legally compliant. The notary informs and advises the testator as to the various ways in which his assets can be disposed of, and how to achieve his desired aims. The possibilities offered by the Law are numerous, and notaries will advise as to how to achieve them, while also providing information as to the taxation consequences, at all times in accordance with the strictest confidentiality.
The involvement of a notary, as an expert who draws up the will, guarantees that all the legal formalities are fulfilled, and that the contents of the will comply with the law, in particular as regards reserved portions, a matter which is discussed below. Meanwhile, the notary is responsible for preserving the will (as he retains the original, with just a copy being handed to the testator), and furthermore the General Register of Last Wills and Testaments serves to establish the most recent will that had been made at the testator's time of death, maintaining an absolute guarantee of secrecy and confidentiality in life as regards the existence of the will and as regards its contents.
What you need: all that is required is to make an appointment with a notary, taking along a national identity document, and to explain how the estate is to be left. Depending on the complexity of the will, the notary might request deeds to your assets, or further information. On the basis of these details, the notary will draw up the text of the will and proceed to execute it, without requiring the involvement of any other individuals, as the presence of witnesses is not necessary except in certain cases. It is very simple, and there is no need to draw up an inventory of all the property you own.
How much does it cost to draw up the will?
A will is a very inexpensive document, bearing in mind its supreme importance and, on occasion, its legal complexity. Irrespective of the value of the testator's assets, a will costs little more than 36 euros. If it is longer than normal, the price may be slightly higher (but is very unlikely to be more than 60 euros).
Content and characteristics of the will
The will does not need to state which specific assets correspond to the portion allotted to each heir. Most commonly, if the testator has children, then they will be established as equal heirs, without making any reference to the individual assets, but simply applying an equal percentage to all of them. It is when the testator dies that those named in the will are required to draw up an inventory of the deceased's assets and debts, and proceed to distribute them.
It may be that a testator wishes to allocate a particular asset to one or more individuals, whether a real estate property, an item of jewellery, money held in a current account, or whatever else. In this case, what is known as a bequest is performed. The testator bequeaths that particular asset. The bequest may be made in favour of the forced heirs (whether descendants or ascendants), or other individuals or institutions. In all cases the limits imposed by the reserved portions must be respected, as explained below.
The recipients of a bequest receive only what is specified by the testator, while all the remaining assets are allocated to the heirs, who are the individuals who acquire all property owned by the deceased and not specifically bequeathed, including debts, which they will be obliged to settle if they formally accept the inheritance (it may also be accepted tacitly).
It is on occasion advisable to appoint one or more people to handle the inheritance and protect the assets after the death of the testator and to establish the distribution, if it is expected that there will be friction or difficulties among the heirs: this figure is known as the executor.
For example: a father designates his children as heirs, but, believing that there could be disputes among them as regards the inheritance, he appoints, to avoid this, a relative or friend, or more than one, as executor to distribute the assets, without the children being entitled to refuse this, unless they all agree. This is one way of overcoming difficulties, ensuring that the estate is not divided by the heirs themselves, but by a trusted third party.
Guardians may be appointed in the event of children under legal age, to allow for the possibility that both parents might die.
The provisions made in a will, in accordance with the needs in question (age of children, desire for certain assets not to be sold for a particular period of time, that they be passed on to other individuals in the absence of those designated, or after their death, limitations, requests, etc.) are hugely varied, and lie beyond the scope of this text. The aim in this summary is simply to offer general information, but as this is such an important and personal matter, and on many occasions a very delicate issue,you should not hesitate to turn to a notary, raising any queries and setting out your ideas, so as to receive information about all the options and advice as regards your particular circumstances. Remember that you will receive advice free of charge, whether or not you decide to draw up the will.
A will can always be revoked, in other words it can always be changed, as whoever drew it up can make another subsequent will at any time. Meanwhile, it is a personal document that does not need to be handed in at any register or office, and does not prevent the testator from disposing of his assets, as if he had made no will at all. It simply represents the will, the intention of the individual as to how his assets should be distributed when he dies, but has no effect during his life.
The most common will: “From one to the other, and then to the children”
This will offers the certainty that while either of the spouses is alive, he or she will be entitled to live in the home and use the assets, and when both are no longer living, the property will be passed on to the children in equal shares, even if the widow or widower has remarried, since they will not be the owner, but a usufructuary. The system is colloquially known as 'from one to the other, and when both die, to the children'. And the fact is that this expression perfectly corresponds to the content of such a will. It is so simple, that it is no surprise that it is the model most commonly used by married couples drawing up a notarial will. Each of the spouses must draw up this will separately: they are individual documents.
The most typical case is of a married couple with children planning to make a will. The typical idea they would have is that the widow or widower should retain the greatest possible rights, and in particular be able to continue living in the home and making use of the assets during his or her life, after which they will be passed on in equal parts to the children.
The way to achieve this is for each of them to make a respective bequest of universal usufruct, in other words all assets owned by the deceased being attributed to the surviving spouse, while naming the children as heirs in equal parts.
This means that the widowed husband or wife can make use of and receive the revenue and yields from the assets of the two of them in life, which means for example that he or she is entitled to live in the home, without the children being able to refuse this. In the event of leases, the widow or widower will receive the rent and, in general, will benefit from all yields on any assets previously held by the two of them, but may under no circumstances sell anything that belonged to the deceased, unless all the children grant their consent. When the widowed parent dies, the children will receive the inheritance of both parents subject to no limitation.
The widowed parent will in all cases enjoy unrestricted rights over his or her half of the jointly owned properties (once the joint assets have been distributed between the latter and the children), since this half is not received as an inheritance from the deceased, but was owned prior to the death. The effects of the will are limited to the half of the joint assets corresponding to the deceased, plus his or her exclusive assets, in other words those that were in turn inherited, or received by donation, or those owned prior to marriage.
With this type of will, in order to avoid any possible detriment to the reserved portion of the children, what is known as the 'Socini safeguard' is included: if any of the children does not agree to the widowed father or mother receiving a usufruct over all assets (since a claim can always been made for a reserve portion applied strictly without any usufruct), that child will forfeit everything except the strictly applied reserved portion, in favour of all other siblings that do so accept. This offers greater guarantees to those children who respect the will of their parents.
The formula is very often supplemented by offering the widowed parent the option of receiving, instead of usufruct over all the assets, the maximum attribution possible by ownership, which under Spanish National Law would be one third. The widowed parent will consider, in accordance with his or her age and circumstances, whether he or she prefers a usufruct or would rather realise a portion of the inheritance in property, that can then be sold without recourse to the children.
What happens if no will is made
The first problem that arises if a person dies without having made a will is what happens to the inheritance. Contrary to what some people believe, the inheritance is not lost, nor is it acquired entirely by the State. What happens in such cases is that as the deceased has not established who the heirs are, then they will be appointed by law, in accordance with our order of family relationship.
As in the case of wills, we will explain here the Spanish National Law principles, leaving to individual notaries themselves any further information about the Special Laws, given their complexity and the differences that exist among the Autonomous Regions.
Who are the heirs in the absence of a will
If the deceased has children, the inheritance is divided among all of them in equal parts.
If any of the children died before the parent, the following distinction must be made:
- f the child in turn had descendants, then they receive in equal parts the portion that would have been inherited by their father or mother.
- If the deceased child had no descendants, then the inheritance is divided only among those children that are living at the time of death of the mother or father.
If the deceased was married, then the spouse enjoys only a usufruct over one third of the inheritance. Meanwhile, as would be expected, the spouse owns one half of the jointly held assets, since these assets are, while both are living, held in equal parts.
In the absence of children, the order is as follows:
To the parents, in equal parts if both are living, or if only one is living then that parent receives the whole inheritance. If there are no parents, but grandparents or more distant ascendants are living, then they inherit. In this case the widow or widower enjoys a usufruct over one half of the inheritance.
If the parents are not living and there are no other ascendants of any kind, then the widow or widower will be the sole heir.
If the parents are not living and there is no living spouse at the time of death: the siblings and their children, and in the absence thereof, the aunts and uncles. If there are no siblings and no aunts or uncles, then first cousins, second cousins and great aunts/uncles, if they are still living. Only if none of the aforementioned relatives is living, in short if a person dies without a will and without any relatives, does the State inherit, or the Autonomous Regions.
Procedures to remedy the absence of a will
If no will has been made, then what is known as a 'Declaration of Heirs' must be formalised, a public instrument made in the presence of a notary, defining which relatives are entitled to the inheritance in accordance with the above rules.
A number of documents must be presented (ID card of the deceased; death certificate; certificate from the Register of Last Wills Testaments; Family Book, at least), and 2 witnesses, in principle, who know the family of the deceased. If they are relatives, they must not have any direct interest in the declaration. Consult a notary for precise information about what you need in this circumstance.
Expenses for these procedures: in the best possible case (declaration of heirs before a notary and inheritance without complications), the expenses are 3 times the cost of drawing up a will. As may be seen, it makes sense to draw up a will. This will allow you to ensure that your assets are passed on to whoever you want, and will make life much easier for your heirs in the future.
Accept or reject an inheritance
When a person dies, the heirs, whether they are established by a will drawn up by the deceased or by legal provision, need to decide whether they accept or reject the inheritance (known in the latter case as a repudiation). Acceptance may be express or tacit. It is tacit if the heir performs acts or dealings to which he or she would not be entitled without having accepted the inheritance, for example by signing a lease agreement for a flat owned by the deceased. An express acceptance, which is the more typical form, is performed 'expressly' before a notary.
Repudiation, meanwhile, can never be performed tacitly, and must be exercised expressly and in a public authentic instrument (before a notary). Both procedures, acceptance and repudiation, are irrevocable once they have been executed, at which point it is too late to change one's mind. Heirs acquire or reject their status as such with full consequences, and forever.
Inheritance can be accepted in two different ways: purely and simply, or under benefit of inventory.
By the former method, the heir undertakes to pay all debts and obligations of the deceased, being liable not only with the assets of the deceased, but also the heir's own, subject to no limitation.
With acceptance under benefit of inventory, the heir is only liable for the debts with the assets inherited, but never his own.
Following acceptance of the inheritance, then inheritance tax must be paid, with the rate varying considerably from one Spanish region to another. The taxable base comprises the value of the property inherited (assets) less any deductible encumbrances or debts (liabilities). And so the tax is paid only on the net value of the inherited estate (following deduction of all debts of the deceased). The heir who has accepted the inheritance may pay the tax before or after payment of the debts of the deceased (a period of six months is granted from the date of death to settle be tax), but will in any event pay tax only on the net amount.
Partition of the inheritance
Why and when to perform the partition of an inheritance. When anyone dies, their assets and any debts they might have are acquired by the heirs indicated it the last will and testament, or in the absence of a will, as established by law. However, a series of procedures must be conducted to establish who the heirs are, in order for the inherited assets held by the deceased to be transferred to the heirs. Until this is performed none of the assets of the deceased can be sold by means of an authentic instrument, nor can money normally be withdrawn from accounts held in the name of the deceased.
Prior steps to be followed.
- The death certificate: this is obtained from the Civil Register for the town where the death occurred (even if this is not the same as the regular abode of the deceased). The Civil Register is normally based at the courthouse of the town or at the Town Hall (Justice of the Peace). The search is typically facilitated by presenting the Family Book, and three copies should be requested for the various procedures.
- The certificate of the Register of Last Wills and Testaments: in order to ascertain whether an individual has made a will, and if so to establish where and when the last will was drawn up. To obtain this document the death certificate must be submitted and sent to the Ministry of Justice. The certificate can also be requested electronically via a notary office.
If there is a will: If the above certificate reveals that there is a will, then an authorized copy must be requested from the notary office where it was drawn up (the copy handed to the testator is normally not sufficient), or in another notary office.
Who can request a copy of the will?: only those who have any right in the inheritance, the forced heirs, or those who would be entitled to the inheritance if there were no will.
How?: by appearing in person with your ID card at the notary office where the will was drawn up, or through another notary. This notary will prepare all the paperwork, and even draw up the letter of request.
- If there is no will: A declaration of heirs will need to be drawn up, by a notary. Once an authorized copy of the will or the declaration of heirs has been obtained, and it is known who is entitled to the inheritance and what rights they enjoy, then the partition can be performed.
How to perform the partition and who must be involved and must sign the public instrument before a notary.
- If there is a will: all the heirs and recipients of bequests, and those entitled to a reserved portion, whether or not they are allocated anything in the will.
- If there is no will: all those who are established as heirs according to the declaration of heirs. In the distribution of the inheritance, the system of majorities does not apply, but only unanimity. If one of the interested parties does not agree and does not wish to sign the public instrument, it is not possible to formalise a partition which would be referred to as 'by majority vote', and instead this will require recourse to a judge, as we will see below.
The family may often live far apart, and it could be difficult to gather all of them together. In this case, once an agreement has been reached as to how the partition is to be performed, a notarial power of attorney is normally vested in another of the heirs or some other individual to act on behalf of those not present.
Special cases: the executor.
The testator may appoint a person in the will to perform the partition. This individual is responsible, within the proportion of the inheritance corresponding to each heir, for deciding which assets are allocated to each of them. This is a very useful role, since in the absence of agreement among the heirs then this individual can perform the partition. Your notary can also, if the heirs who request it have 50% of the inheritance, appoint an estate partitioner..
If the deceased was married under the joint asset regime, liquidation of the marital assets will also need to be performed with the widowed spouse (in other words establishing which assets correspond to the widowed spouse as his or her half of the estate, and which correspond to the inheritance left by the deceased).
It is in any event advisable, in order to avoid claims, that the executor should achieve a unanimous agreement by all those listed above as necessarily being involved in the partition, who would then all attend together with the executor to sign the instrument of partition, although this agreement is not under any circumstances an essential requirement. The executor can sign the instrument of partition alone, unless the deceased was married under the joint assets system, in which case the widow or widower must also sign, but not the heirs.
We stress that your notary can appoint you an estate partitioner from the lists available at the Notarial Association..
How partition of the inheritance is performed
Prior acts: the distribution of joint assets and collation of donations.
- The distribution of joint assets: if the spouses were not married under the separate assets regime, any assets purchased during the marriage are joint, in other words shared between the two. When one of them dies, it must be established which assets remain the property of the widow or widower, and which correspond to the inheritance left by the deceased. This is typically performed at the same time as the partition and in the authentic instrument of inheritance itself, as it requires the involvement of the same individuals (the widow/widower and the heirs).
- The collation: when donations have been made by parents to children in life, the legal position is that this has been performed as an advance of the inheritance, which will need to be taken into account in order for these children to have the value of the donations they receive deducted from their inheritance. In other words, the law holds that if a parent has given any gift to a child then this was not intended as an enhancement, but because a part of the inheritance was being advanced during the parent's life, which means that the gift given must be included in the calculation to perform the allotment among all the heirs. Nonetheless, collation does not apply if the mother or father established otherwise when making the donation.
Once the above has been performed, this will establish what the inheritance comprises and what must be distributed among the heirs in accordance with the portion allotted to each. The heirs must all agree as to the allotments of assets corresponding to each. If the testator established who was to receive all or any of the assets, then this will must be respected.
Although the book of partition may be drawn up privately, it is more practical and convenient to perform all the above operations in one single authentic instrument of partition, thereby receiving advice from the notary. Meanwhile, a privately signed book of partition will subsequently be recorded in an authentic public instrument.
What it costs to inherit: inheritance tax
Here we will analyse the general regime. In the Basque Country and Navarre there is a much more favourable tax regime (inheriting is much cheaper) than in the rest of Spain. Other Spanish regions have also over the years established in their regional legislation rebates that in many cases constitute a complete exemption. The criterion for the application of this regime is the domicile of the deceased,, having lived during a certain period within the territory in question.
Who pays: the tax is paid by each of those receiving any inheritance, whether as heirs or because of a bequest made by the deceased.
How much is paid: The amount of the tax depends on various factors:
- The value of the assets received: the scale is progressive, in other words the percentage increases, the greater the value of the inheritance.
- The relationship with the deceased: the more distant the relationship, the higher the percentage that is paid. Meanwhile, depending on the relationship there are certain initial amounts (revised each year) on which nothing is paid. In other words, there is an exempt minimum which depends on the closeness of the family relationship.
- The prior assets of the heir: if the heir has substantial prior assets (as established in the Inheritance Tax Act), then the inheritance will also be more costly.
- There are furthermore inheritances on which lower taxes are paid, subject to certain conditions, such as the family business or family home, if the heirs are the spouse and children.
When payment must be made by: the tax return for payment must be filed within a maximum of 6 months of death. If this period is exceeded, the Tax Office applies the corresponding surcharge.
The public instrument of partition serves to make the tax statement. If this instrument has not been drawn up, then a private form must be submitted. Inheritance Tax does not require a self-assessed payment in all the Autonomous Regions (although this is permitted), in other words it is sufficient for the party concerned to present the information, and the Tax Office will then perform the calculation and inform the taxpayer of the amount due.
Testators are not always free to leave their assets as they might wish. There is a legal obligation to leave something (known as the 'reserved portion') to descendants, ascendants and spouse, as applicable, who are therefore referred to as the 'forced heirs'. However, it must be borne in mind that the same rules do not apply throughout Spain. Certain regions are subject to special, historic, devolved laws known as 'Derechos Forales', or specials, which apply different regulations to wills and inheritances. These regions are essentially Galicia, Catalonia, Aragon, Navarre, a part of the Basque Country and the Balearic islands. Here we will explain the law for the rest of Spain, in other words the territory covered by National Law.
Who the forced heirs are and how much must be left to them.
- Children and descendants: two thirds of the inheritance. One third of the inheritance must be left in equal parts to the children, and another third (known as the 'mejora', or 'enhancement') to children and grandchildren, although this third can be freely distributed among them, or left to just one of the descendants.
- Parents and ascendants: if there are no children or descendants, then a third of the inheritance must be left to the surviving ascendants if there is also a widow or widower, or one half of the inheritance if otherwise. If there are descendants, the parents enjoy no entitlement.
- Widow or widower: if the testator has children or descendants, then one third of the inheritance must be left to them by usufruct. If they coexist only with ascendants, they are entitled to one half of the inheritance by usufruct. If there are neither descendants nor ascendants, they are entitled to a usufruct over two thirds of the inheritance.
This is entirely mandatory for the testator. These individuals can be deprived of their rights only in cases of disinheritance or indignity, governed by the Civil Code, such cases being very uncommon in practice. Beyond these limits, though, the inheritance may be allotted as desired.
Reserved portions under devolved regional law.
The reserved portion of the descendants is not individual in Aragon, but collective: one half of the inheritance must be allotted to children or descendants, although the testator may allocate it equally or unequally among all of them, some of them, or even just one.
There is no entitlement to an individual reserved portion. The testator may distribute it as he or she wishes among the descendants, or even leave all of it to one of them.
MAJORCA AND MINORCA
In Majorca on Minorca the forced heirs are children and descendants by blood, whether within wedlock or not, and adopted children, with one third of the inheritance allotted to them if they are 4 or fewer in number, and one half if there are more of them.
The right to a reserved portion is forfeited under the specific law governing Majorca as a result of an inheritance agreement known as a 'definition', which entails a renunciation by a descendant on account of a donation, allocation or compensation received then or previously received from ascendants resident in Majorca.
The parents are also forced heirs, whether by blood or adoption, and are entitled to a quarter part of the inheritance (half each, or the entire portion if one has died). The reserved portion of the widowed spouse is a usufruct over one half of the inheritance, if coexisting with descendants; two thirds if coexisting with parents; and universal usufruct in all other cases.
IBIZA AND FORMENTERA
In Ibiza and Formentera the forced heir is entitled to a part of the value, which may be defined in assets or money, guaranteed with a real attachment for payment over all inherited assets.
Forced Heirs: The forced heirs are only the children and descendants or, in their absence, parents, by blood or adoption.
Amount: the amount of the reserved portion allotted to the children is the same as in Majorca. The parents' portion is equivalent to that established in the Civil Code.
Renunciation is possible by means of a 'settlement' of the reserved portion, similar to the 'definition' in Majorca.
Forced Heirs: the forced heirs are the children and descendants and, in their absence, the father or mother, or whichever of these survives.
Amount: the amount of the reserved portion is one quarter of the net value of the inheritance, including donations made in life. In order to establish the individual reserved portion among several forced heirs the calculation includes the heirs, the forced heirs renouncing their portion, those who have been fairly disinherited and those declared unworthy of succeeding the deceased.
Payment: the reserved portion may be paid, as decided by the heir, in assets from the inheritance, valued for this purpose at the time when the allocation is made, or in money, even if not included in the inheritance.
Forced Heirs: the forced heirs are the children and descendants of children who died before the deceased, those fairly disinherited or deemed unworthy, and the widowed spouse not separated in law or in fact.
Amount: the reserved portion of the descendants is a quarter of the value of the net assets inherited, to be divided among the children or their descendants.
Payment: if the testator has not assigned the reserved portion in specific assets, the heirs may by common agreement opt either for payment in inherited assets or in cash, even if this is from outside the inheritance. In the absence of agreement among the heirs, payment of the reserved portion will be performed in inherited assets. The forced heir does not enjoy any real action to claim the reserved portion, and will for all purposes be classified as a creditor.
As for the reserved portion of the widowed spouse, the entitlement is to a lifelong usufruct over a quarter of the inherited assets if coexisting with descendants, and in all other cases a lifelong usufruct over a half.
The rights vested in spouses have been extended to marital relationships with the intent of permanence and fulfilling the requirements specified by Act 10/2007.
In Navarre there is almost a complete freedom to testate. Those from Navarre may freely allocate their assets, subject to no restrictions other than to allocate to their children or, in their absence, their descendants, a formal reserved portion of a symbolic nature of 5 “febles” or “carlines” coins for personal property, and a “robada de tierra” of common land for real estate. This reserved portion does not have required patrimonial content nor confers the status of heir, and that appointed within it will not respond in any case of inherited debts nor will they be able to exercise the heir's own actions. The appointment in the formal reserved portion will be able to be made for all the forced heirs collectively.
The appointment will not be necessary in the formal reserved portion when the testator has endowed the forced heirs, has attributed to them any benefit to transfer upon death, has disinherited them for just cause, or they have renounced their inheritance or have died without leaving offspring with the right to forced heirship.
The widowed spouse has the fidelity usufruct over all property and rights that belonged to the deceased at the time of death. The early renunciation of the fidelity usufruct granted in a notarial instrument, before or after marriage, is valid. In a will or an inheritance agreement, a spouse may deprive the other of the fidelity usufruct, due to leaving the family home due to marital infidelity, serious or repeated disregard of marital or family duties, or for making an attempt on another's life, even if there is no separation..
Law 2/2015 of 25 June, which entered into force on 3 October, provides for the following developments, among others: The succession regime was unified, creating the Basque regional domicile, common to the three historic territories of Araba, Bizkaia and Gipuzkoa. Only the descendants and the widowed spouse or partner, not the ascendants, are forced heirs. The forced heir of children and descendants is reduced to a third of the inherited wealth and becomes collective. The testator can distribute as they see fit, the forced heir to their grandchildren or later descendants, even if the parents or ascendants of the former are alive (separation). Disowning, whether intentional or unintentional, of a forced heir descendant, is equivalent to their estrangement.
The widowed spouse or partner has a forced heirship of half of the inheritance, concurring with descendants, and two-thirds if concurring with ascendants. They also have a right of habitation over the common habitual residence. Finally, it is possible to delegate to the spouse or partner the faculty of distributing the testator's assets among the forced heirs as they see fit, by means of the testamentary power of appointment. It is advisable to consult with the notary to update the previously granted wills.
The principles of the Civil Code apply as regards reserved portions, although allocation of the family farm and appurtenances in favour of one or more forced heirs, ascendants for descendants, is excluded from calculation of the reserved portion, with certain consequences if the allocation is not maintained for 6 years.
As for widowed spouses, they will enjoy a right of habitation over the house or the part thereof comprising the family home, provided that when the other spouse died they had not separated by means of a decree absolute and had not separated in fact by common consent with confirmed evidence, and will lose this entitlement if remarrying, or entering into a common-law partnership with another person. This right is compatible with the reserved portion attributed to the widowed spouse in the Civil Code.
THE FORUM OF AYALA
In Ayala the forced heirs according to this legal forum are the descendants, ascendants and the spouse in the cases established in the Civil Code, although this capacity is purely symbolic, since they are only entitled to have separated 'little or much, however the deceased might see fit'. As a result, the descendants of other descendants excluded will not be considered to have been wrongfully omitted from the provisions of the will, and will replace the ascendant in the separation.
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