Forced Heirship for Non-Residents

An important part of inheritances is the portion that must be left to specific individuals by law. This is known as forced heirship.

Inheritance for Non-Residents in Spain

The first thing to keep in mind when receiving an inheritance is that it is distributed according to the regulations in force at the time of the death in the country where the deceased resided.

In this case, we are talking about inheritances from deceased persons with residency in Spain.

When the person receiving the inheritance does not reside in Spain, they still have to pay Inheritance and Gift Tax in Spain.

To determine tax residency, various factors must be considered, such as the number of days spent in the country per year or where most of the income is obtained.

What is Forced Heirship?

Forced heirship is the portion of an estate that the testator cannot freely dispose of.

This portion is reserved for the compulsory heirs, who are the descendants, ascendants, and the spouse of the deceased, in that order of priority.

Therefore, compulsory heirs have rights according to their relationship with the deceased.

Compulsory Heirs in the Inheritance

According to Spanish law, the compulsory heirs are the children and descendants with respect to their parents and ascendants.

If the deceased had no children or descendants, the compulsory heirs are their parents and ascendants.

The surviving spouse has a right to the forced heirship, always in usufruct, which varies depending on the presence of other compulsory heirs.

Calculation of the Forced Heirship

Article 808 of the Civil Code establishes that the forced heirship for children and descendants constitutes two-thirds of the estate.

Parents can allocate one part of these two-thirds to improve the inheritance share of their children or grandchildren.

The remaining third is freely disposable by the testator.

Forced Heirship by Location

Although the aforementioned rule applies to Spanish territory, some Autonomous Communities have established their own regulations in this regard.

Basque Country

In the Basque Country, forced heirship corresponds to one-third of the estate.

There is no right for ascendants to forced heirship, and children can be excluded in favor of grandchildren or great-grandchildren. In this case, it would be a collective forced heirship, which can be freely distributed among the descendants. Unnamed descendants cannot claim a strict forced heirship share.

Aragon

In this region, forced heirship is half of the estate.

Individuals can decide which descendants will receive the inheritance, whether children or grandchildren, and distribute it equally or not among all, one, or several descendants. If not specifically distributed, it passes to the children.

Balearic Islands

In the Balearic Islands, forced heirship for children is one-third of the estate if there are four or fewer successors. If there are more children, it will be half of the estate.

Catalonia

In Catalonia, forced heirship for children is 25% of the assets, distributed equally among them.

Galicia

As in Catalonia, forced heirship for descendants is 25% of the estate, divided among the children or their descendants.

Waiving the Forced Heirship

When an inheritance is received, and it is clear what assets and debts are involved, many people consider whether to accept the inheritance.

But… can forced heirship be waived?

Waiving the Forced Heirship During the Lifetime

A forced heir’s waiver of the forced heirship while the testator is alive is null and void. This is stated in the Civil Code, so it cannot be agreed upon between the testator and the compulsory heir before the commencement of the inheritance process.

Waiving the Forced Heirship After the Testator’s Death

Unlike the previous case, it is possible to waive the forced heirship after the testator’s death when the succession has already started. The waiver must be clear, resolute, explicit, and expressed, done before a notary. Otherwise, it will have no effect. Non-residents must pay Inheritance and Gift Tax in Spain if they receive an inheritance from someone who resided in Spain. Additionally, they must comply with Spanish regulations regarding forced heirship. Although there are differences depending on the region where the deceased resided, at least one-third of the estate must be received by the children.

Further information

This article is part of our service Inheritance in Spain. Visit this section where you will find all the useful information on this topic, including a complete guide on Inheritance in Spain with a non-resident, expat or foreigner.

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