As a starting point, when referring to inheritance or succession, we must make a distinction between testate and intestate succession. Testate succession is governed by the provisions that the deceased has made in his last act of will (testament), while intestate succession takes place in those cases in which the deceased died without a will and is governed by the rules laid down in our Civil Code.
This article intends to clarify some of the most common doubts related to testate succession, i.e. the succession by means of which the deceased has disposed of his property by will, whether it is testament granted before a Notary Public, a handwritten will or a special will as provided by in the Civil Code.
Firstly, we should note the particularity that Spanish Civil Code does not recognise testamentary freedom and establishes the figure of «the legitimate or natural portion». This is the inalienable succession of two thirds of the value of the deceased´s estate, being a portion of the estate that descends to natural heirs as of right, and which cannot be disposed of since it is reserved by law to certain heirs, known as heirs of right.
The law provides that the legitimate of the lawful heirs shall be two-thirds of the estate, which can be divided into strict legitimate and third for betterment, which together form the so-called ample legitimate. The testator cannot dispose freely of the third of strict legitimate, this being reserved by Law to the descendents, ascendants and collaterals. The descendants are called in preference to the ascendants and these again in preference to the collaterals.
Further analysis of the Spanish Inheritance Law
However, we must note that the surviving spouse is always a lawful heir and the portion of the estate to which he or she is entitled to depends on the degree of kinship of the rest of the heirs. In the event that the surviving spouse is called along with descendants, he is entitled to a life usufruct of the third for betterment. When he is called along with ascendants, his legitimate shall be the life usufruct of half of the estate; should he be called along with collateral relatives only, he has the lawful right to the life usufruct of two-thirds of the estate.
As for the third for betterment, this is a portion of the wide legitimate that can be distributed unevenly among the children and descendants, and that is intended to benefit certain descendants of the testator, with the obligation to reserve the usufruct of this portion of the estate to the surviving spouse in any case.
The remaining third of the estate is called unrestricted third, which is the only part of the estate that testator can dispose of freely, not being restricted to kin or the surviving spouse.
However, it is possible that after the death of a family member, you may be surprised to see that your legitimate was not respected when granting the will, or that in order to circumvent the provisions of mandatory law, the deceased decided to make substantial donations that have left you with no assets to inherit. These donations are called inofficious donations and can be reduced by the judge upon the death of the testator by request of the heirs.
While it may seem a relatively easy task, we must bear in mind that when we are called to an inheritance we face a difficult times in which it is necessary to make important decisions and be very well advised. Our specialists in Civil and Procedural Law can advise you concerning the legal options best suited to your particular case, both for drafting your will, for your representation in the distribution of the estate or in order to reduce inofficious donations.