Who are the forced heirs? Rights that cannot be ignored

Article 807 of the Spanish Civil Code establishes with complete clarity that children and descendants with respect to their parents and ascendants constitute the first order of forced heirs. This categorization does not distinguish between biological, adoptive, marital or extramarital children, granting all of them identical legitimary rights.

The current regulation includes within this category:

• Children of any filiation: both biological and adoptive have the same inheritance rights
• Grandchildren and great-grandchildren: when there is a right of representation due to predeceasing of their progenitors
• Descendants of any degree: provided that there are no heirs of superior degree

Descendants have the right to two-thirds of the hereditary assets of the decedent, as established by article 808 of the Civil Code. This legitimate portion is divided into two clearly differentiated parts:

Third of strict or short legitimate portion: Represents one third of the hereditary estate that must be distributed mandatorily in equal parts among all children or descendants. The testator cannot dispose of this portion differently.

Third of betterment: Constitutes the second third which, although it continues to be part of the legitimate portion, allows the testator to decide which descendant or descendants receive it and in what proportion. This flexibility grants certain freedom of disposition within the legitimary framework.

Spanish jurisprudence has consolidated numerous cases where descendants have successfully defended their legitimary rights. A paradigmatic example is constituted by the inheritance of Nobel Prize winner Camilo José Cela, where the Supreme Court confirmed in 2014 that his son, as sole descendant, was entitled to two thirds of the estate, also computing the gifts made during his lifetime.

The surviving spouse holds a unique position within the Spanish legitimary system. Unlike descendants and ascendants, the widower or widow does not inherit full ownership of the assets, but rather receives usufruct rights over a determined part of the inheritance.

The amount of widowhood usufruct varies considerably according to which other forced heirs it concurs with:

With descendants: The surviving spouse has the right to usufruct of the third destined for betterment. This right can be extended through favorable testamentary dispositions.

With ascendants of the decedent: In the absence of descendants, the usufruct extends to half of the hereditary estate.

Without descendants or ascendants: The surviving spouse obtains usufruct of two-thirds of the inheritance, becoming the main beneficiary.

An important characteristic of widowhood usufruct is the possibility of commutation. The heirs may opt to satisfy the right of the surviving spouse through cash capital, a lot of hereditary assets or life annuity. However, this process requires the agreement of the widower in the valuation and specification of the assets, and without such agreement the judge must decide.

A frequently unknown aspect is that when the surviving spouse concurs only with children of the deceased (typically in second marriages), it is the surviving spouse who can demand that the usufruct be paid in cash or with a lot of estate assets, at the children’s choice. This avoids indefinite co-ownership.

Parents and ascendants constitute the second order of forced heirs, acting only when the decedent lacks children and descendants. This subsidiarity responds to the principle of family proximity that inspires our succession system.

Article 809 of the Civil Code establishes that the legitimate portion of parents or ascendants constitutes half of the hereditary assets. Nevertheless, this amount is reduced to one third of the inheritance when they concur with the surviving spouse of the descendant decedent.

The legitimate portion of ascendants follows specific distribution criteria:

• Absolute preference of proximity of degree: parents exclude grandparents
• Absolute inapplicability of the right of representation: unlike descendants
• Succession by lines in equality of degree: division between paternal and maternal line

There exist specific circumstances that can deprive ascendants of their legitimary rights. The parent will be excluded when he has been judicially condemned for the relations that gave rise to generation or when filiation has been judicially determined against his opposition. Nevertheless, these restrictions can cease by decision of the child’s legal representative approved by a court or by will of the descendant himself upon reaching full capacity.

One of the most important institutions in Spanish succession law is the right of representation. When a child of the decedent dies before the progenitor, their descendants (the grandchildren of the decedent) represent them in the inheritance, occupying their place and receiving the legitimate portion that would have corresponded to them.

This right operates exclusively in direct descending line and never in the ascending line. In collateral line it only proceeds in favor of children of siblings (nephews) of double bond or of one side only.

Preterition constitutes the omission of a forced heir in the will, whether intentional or erroneous. This figure produces different effects according to its nature:

Intentional preterition: When the testator consciously omits a legitimary, this one conserves his right to claim the legitimate portion, proportionally reducing the quotas of the instituted heirs.

Erroneous preterition: When the omission is due to ignorance of the existence of the legitimary, it can annul the appointment of heirs or, if all the children were omitted, all the property provisions of the will.

Disinheritance represents the legal mechanism by which the testator can deprive a forced heir of their legitimate portion for causes expressly established in the law.

Common causes of disinheritance applicable to all legitimaries:

• Having been condemned for attempting against the life of the testator
• Having calumniously accused the testator of a crime
• Having obliged the testator with violence, fraud or threat to make or modify a will

Specific causes for descendants:

• Having denied alimony to the testator without legitimate motive
• Having mistreated with deeds or gravely insulted with words the testator

Specific causes for ascendants:

• Having lost parental authority according to article 170 of the Civil Code
• Having denied alimony to the descendant without motive
• Having attempted against the life of the other parent

A curious fact is that reconciliation between the offender and the offended leaves the disinheritance without effect. This norm humanizes the legitimary system, allowing restored family ties to prevail over causes of exclusion.

In autonomous communities with their own civil law, the legitimary system presents significant particularities:

Catalonia: The forced heirs are only descendants and, failing them, parents, with a legitimate portion reduced to one quarter of the hereditary value.

Aragon: Only descendants are legitimaries, with a collective legitimate portion of 50% of the hereditary estate.

Galicia: Maintains the system of descendants and surviving spouse, but with a legitimate portion reduced to one quarter of the hereditary value.

To determine with precision the amount of the legitimate portion, it is necessary to perform two fundamental technical operations: computation and imputation.

Computation consists of adding to the net value of the relict assets all donations made during the lifetime by the decedent. Article 818 of the Civil Code establishes that “to fix the legitimate portion, attention will be paid to the value of the assets that remain at the death of the testator, with deduction of debts and charges.”

Imputation implies discounting from the calculated legitimate portion the donations and liberalities that the legitimary would have received during the lifetime of the decedent.

Let us suppose an estate of 300,000 euros with three children as sole forced heirs:

• Relict estate: 200,000 euros
• Donations during lifetime to strangers: 100,000 euros
• Total calculation base: 300,000 euros
• Global legitimate portion of descendants (2/3): 200,000 euros
• Individual legitimate portion per child: 66,666.67 euros

A circumstance frequently forgotten is that the debts and charges of the decedent reduce the calculation base of the legitimate portion. Whoever relies on those debts to reduce the forced share must prove that they exist and how much they amount to.

When the legitimate portion is not completely covered, the legitimary has the complement action, which allows claiming the difference until reaching the legal amount. This action has been frequently used by the courts to protect the rights of forced heirs.

Donations made during lifetime that prejudice the legitimate portion can be subject to reduction for being inofficious. The law allows this reduction to protect legitimary rights, beginning with the most recent donations.

The courts have repeatedly established the principle of quantitative intangibility of the legitimate portion, according to which forced heirs are entitled to receive the full amount of their forced share, without the testator being able to reduce it.

It is worth clarifying that there is no “Succession Law 2025”: the Civil Code rules on who the forced heirs are and how much they receive have not changed. The relevant change is procedural. Since 3 April 2025, Organic Law 1/2025 on measures for the efficiency of the Public Justice Service generally requires parties to try an appropriate dispute resolution method (negotiation, mediation or conciliation, among others) before filing a civil claim, and this affects many disputes between heirs.

Organic Law 1/2025 has also created the new first-instance courts (Tribunales de Instancia) and replaces the Peace Courts with municipal Justice Offices. These changes seek to expedite inheritance procedures and facilitate access to justice in small localities.

Forced heirs represent a fundamental institution of Spanish succession law that guarantees the protection of the closest family ties. The legitimate portion constitutes an intangible right that cannot be ignored or circumvented through testamentary dispositions contrary to law.

Descendants maintain the predominant position in the legitimary system, with the right to two-thirds of the hereditary estate. Ascendants act subsidiarily when there is no descendancy, while the surviving spouse enjoys specific protection through widowhood usufruct.

The procedural reforms of 2025 aim to speed up the resolution of disputes. However, the protective essence of legitimary rights remains intact.

It is fundamental that potential legitimaries know their rights and do not hesitate to claim them when they are violated. Specialized legal advice is indispensable to navigate through the technical complexity of these matters and guarantee that the rights that cannot be ignored are effectively respected and exercised.

1. Can I be disinherited without justified cause?

No. Disinheritance is only valid when it is based on some of the causes expressly established in articles 852-855 of the Civil Code, must be done in a will and clearly express the cause. Without legal justified cause, disinheritance is null and the legitimary conserves their rights.

2. What happens if my father marries for the second time?

The spouse of second marriage acquires widowhood usufruct rights, but you maintain your legitimary rights as descendant in their entirety. The heirs may pay that usufruct with a life annuity, the income from certain assets or a lump sum, by mutual agreement or, failing that, by court order. And if the surviving spouse concurs only with children of the deceased, he or she may demand to be paid in cash or with a lot of assets, at the children’s choice.

3. Can I renounce the inheritance but conserve the legitimate portion?

No. Renunciation of inheritance is total and includes all succession rights, including the legitimate portion. There is no possibility of partial acceptance of inheritance in Spanish law.

4. Do grandchildren have direct legitimary rights?

Grandchildren only have legitimary rights when their progenitor (child of the decedent) has died before the grandparent, has been disinherited or is unworthy to inherit, then exercising the right of representation. In this case, they receive the part that would have corresponded to their deceased father.

5. How do the new reforms of 2025 affect my rights as legitimary?

The 2025 reforms are procedural: they generally require trying negotiation or mediation before suing, but they do not change who the forced heirs are or how much they are entitled to.

Article written by Mario Martínez-Cardós Bada, Spanish lawyer specializing in tax and inheritance law.

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