Spanish succession law reserves a fixed share of every estate for the deceased's children and, in some cases, the surviving spouse. This "legítima" cannot be disposed of freely by will — unless you are a foreign national who elects your own national law under Brussels IV. For most expats, that election is the single most important clause in their Spanish will.
Spain is a civil-law jurisdiction with deep roots in Roman-law succession. One of those roots is forced heirship — the legítima. Articles 806 and following of the Spanish Civil Code reserve a compulsory share of the estate for specified relatives, principally children. The testator cannot disinherit them except on very narrow statutory grounds. The effect is that a Spanish national resident in Spain cannot simply leave everything to their spouse, or to one child over another, or to a charity. Two-thirds of the estate is ring-fenced for the compulsory heirs.
For most of the 20th century this caused serious problems for foreign nationals who owned Spanish property. An English testator who wanted to leave a Spanish villa to their spouse could find their children — under Spanish succession rules — entitled to claim back two-thirds of it. In August 2015, Regulation (EU) 650/2012 ("Brussels IV") came into force and changed this entirely. Since then, any foreign national can elect the law of their nationality to govern their estate, displacing Spanish forced heirship. For English, Scottish, Irish or American testators this usually means full testamentary freedom over Spanish assets.
Brussels IV is the single most important clause in any expat Spanish will. This page explains how the legítima works, which regions apply different rules, how the Brussels IV election is made, and the edge cases where forced heirship still bites even with a correctly drafted election. If you hold assets in Spain and your instincts about who inherits what differ from Spanish default rules, book a succession review.
Under the general Spanish Civil Code (applied in most regions), the estate is divided into three equal thirds for testamentary purposes:
One-third must pass in equal shares to the testator's children — or, if a child is deceased, to that child's children (grandchildren by representation). No deviation allowed. No preferential treatment of one child. If the testator has no children, this share passes to ascendants (parents, grandparents).
Another third must pass to children or descendants, but the testator can weight it unequally — for example, giving one child more than the others, or skipping a child in favour of a grandchild. This is the "flexible" half of the compulsory share.
The remaining third is truly free. The testator can leave it to anyone — spouse, friend, charity, distant relative.
In practical terms, a Spanish national with children and a surviving spouse can freely dispose of only one-third of the estate. The other two-thirds are locked to the children. The spouse has a separate right — the "cuota viudal" — to a life interest over one-third of the estate in addition to anything explicitly left by will.
Seven regions of Spain have their own civil codes (derechos forales) that modify or, in some cases, almost eliminate forced heirship.
Very different rule: only one-quarter of the estate is reserved for the legítima. Significantly more testamentary freedom than the standard Code. Legítima can be discharged by a monetary payment rather than a real asset share.
Forced heirship mostly abolished under the reformed Basque Civil Law of 2015 for testators subject to its rules. Testamentary freedom close to common-law levels.
Children's legítima is a collective share: testator can allocate the entire legítima share to one child and exclude others. Parents' legítima is optional.
Formal legítima exists but is discharged by any trivial legacy (historically a handful of wheat); effectively almost full testamentary freedom.
Different rules on each island. Mallorca and Menorca apply a one-third legítima (if one or two children) or one-half (three or more children); Ibiza and Formentera apply a reduced system.
Legítima reduced to one-quarter of the estate; spouse's cuota viudal also reduced.
These regional rules only apply to testators whose "vecindad civil" (civil residency) is in the region. Vecindad civil is a Spanish-law concept distinct from tax residency and not usually acquired by foreign nationals even after long residence. In practice, almost all expats remain outside these regional systems — their default, before Brussels IV, is the standard Civil Code legítima regardless of where in Spain they live.
Regulation (EU) 650/2012 allows any person to elect the law of their nationality to govern their succession. Made correctly, this displaces Spanish forced heirship entirely.
The election is a specific clause in the Spanish will ("elijo que la ley aplicable a mi sucesión sea la ley de nacionalidad"). Must name the jurisdiction precisely — "English law" not "UK law" for an English testator.
The key clauseThe whole will must be drafted in terms consistent with the elected law. A will that elects English law but applies Spanish intestacy-style defaults creates contradictions.
Coherent draftingElection signed at a Spanish notary as part of the testamento abierto. The notary records the election in the notarial deed and it becomes enforceable from that date.
Formally registeredBrussels IV is a Spanish regulation applied by Spanish notaries. Spain honours elections to the law of any third-country national. British nationals still have full access to the election.
Unaffected by BrexitThe election governs the whole succession — not just forced heirship. Validity, form, administration and beneficiaries all fall under the elected law, except for Spanish tax which always applies.
Single legal systemBrussels IV changes succession law, not tax law. Spanish IHT still applies to Spanish assets regardless of the election. Tax planning and succession planning are separate decisions.
Tax is separateWe map the family structure, the assets, the testator's nationality and the region where assets are held, and identify the legítima position under default rules.
We confirm the correct elected law (English, Scots, NI, Irish, American state, Dutch, etc.) and what testamentary freedom that system allows.
The Spanish will is drafted in Spanish with the Brussels IV election as a freestanding clause and the beneficiary provisions drafted coherently under the elected law.
Signed as a testamento abierto and registered at the Registro Central in Madrid. The election is on record from the date of signing.
The election is powerful but not absolute. A handful of scenarios still produce compulsory-share issues.
A person with both Spanish and another nationality can only elect a non-Spanish law. If they have lived in Spain for decades and are dual-Spanish by naturalisation or descent, the election to their other nationality is still valid — but careful drafting is required because Spain may treat them as a Spanish national for domestic law purposes.
If the testator is foreign but the children are Spanish-resident and dependent on the estate, certain Spanish public-policy rules on minor children's maintenance can override even a valid Brussels IV election. This is rarely invoked but it exists.
Some civil-law countries (France, Italy, Belgium, Germany) retain their own forced heirship systems. A German national in Spain who elects German law does not escape forced heirship — they swap Spanish legítima for German Pflichtteil. English, Scots, Irish and most American states, by contrast, give near-total testamentary freedom.
The election in a Spanish will governs succession to Spanish-situated assets. If the testator holds property in France or Germany, those jurisdictions' rules apply and may have their own forced heirship. Cross-border estates need coordinated elections across each will.
Even under standard Spanish succession rules, the surviving spouse has a separate set of rights that are important to understand. If the testator has descendants, the spouse receives a usufructo over one-third of the estate (the improvement third). If the testator has only ascendants, the usufructo covers half the estate. If the testator has neither descendants nor ascendants, the usufructo covers two-thirds.
This is the cuota viudal and is independent of forced heirship. It exists in addition to any share the spouse receives by will. Brussels IV election to a non-Spanish law usually displaces this rule along with the legítima, but careful drafting is needed to avoid accidentally preserving it.
Even without Brussels IV, Spanish law permits disinheritance of a compulsory heir on specific statutory grounds listed in Articles 852–853 of the Civil Code. These include: serious abuse or mistreatment of the testator, denial of filial duty of support, conviction of serious offences against the testator or immediate family, and a few others. The grounds must be documented and the disinheritance proven if challenged. Most courts set a high bar.
Under English law via Brussels IV, the threshold for disinheriting a child is much lower — English law allows full testamentary freedom subject only to claims under the Inheritance (Provision for Family and Dependants) Act 1975, which apply only to dependants in defined circumstances. For most expat testators, the Brussels IV election is the cleaner route to achieving the desired distribution.
Even where the legítima applies, there is flexibility in how it is paid out. The compulsory heir's entitlement is to a value share, not necessarily to specific assets. A testator can leave the Spanish property to the spouse and provide that the children's legítima is paid in cash from other estate assets or from a life insurance policy. This is the most common workaround used by Spanish nationals planning around legítima without Brussels IV.
Lifetime gifts to compulsory heirs (and sometimes to other persons) can be "collated" back into the estate for the purposes of calculating the legítima share. This prevents a testator from transferring all their assets to one child during lifetime to defeat forced heirship. Collation rules are technical; in most expat cases with a Brussels IV election they do not apply, but they are worth flagging for clients who plan significant lifetime transfers.
One clause in your Spanish will. Full testamentary freedom over your Spanish estate. This is the single most important decision for expats.
Book a Succession ReviewUnder default Spanish rules, a disinherited child can bring an action to claim their legítima share, which may require selling the family home to pay them out. Brussels IV election prevents this.
Standard legítima applies regardless of the relationship between testator and child. Decades of estrangement do not strip the legítima unless one of the narrow statutory grounds for disinheritance is proven.
Children from a previous relationship and children of the current marriage all have equal legítima claims. Without Brussels IV, the testator cannot weight the estate in favour of one group over the other.
The cuota viudal gives a life interest, but cash legítima claims from children can force the sale of assets the spouse relied on. Brussels IV typically protects the spouse from this.
Leaving significant sums to charity is difficult under standard legítima rules. The free third caps the charitable share at roughly one-third of the estate.
The Brussels IV election is a single paragraph. Once in place, the testator has the testamentary freedom of their home jurisdiction over their Spanish estate.
A Spanish will drafted by a non-specialist that simply says "I leave everything to my spouse" without electing English law is, on death, subject to Spanish legítima. The children can then claim two-thirds.
"UK law" is not a valid election — the UK has three systems (England & Wales, Scotland, Northern Ireland). We confirm which applies to the testator based on domicile and draft the election precisely.
French, Italian, German or Belgian nationals who elect their own law do not escape forced heirship — they just swap systems. We advise these clients on whether Spanish legítima or their home equivalent is preferable for their goals.
UK will gives testamentary freedom; Spanish will accidentally defaults to legítima without an election. The two wills create a confused estate that takes years to resolve.
Brexit did not affect Brussels IV as applied in Spain. British nationals continue to have full access to the election. This myth regularly causes unnecessary worry — and occasional unnecessary legal fees.
Some clients are told by a notary "the Brussels IV election is automatic" or "it's fine, just sign". The election must be explicit and in writing within the notarial deed. Oral reassurances do not survive the testator's death.
Children from a previous relationship plus current spouse plus joint children. Brussels IV election plus usufructo structure protects the survivor and the various children cleanly.
Legitimate reasons (estranged sibling, special-needs child requiring greater provision, family business succession). Brussels IV election to common-law jurisdiction delivers this.
Ascendants' legítima can apply if parents are living. Brussels IV usually displaces it; if not, careful drafting is needed.
Standard Brussels IV election to English (or Scots/NI) law in both wills. The most common engagement we run.
Technical drafting required. We confirm the testator's available options and build the election around them.
Standard legítima caps charitable gifts at one-third. Brussels IV election removes the cap for English, Scots, Irish and most US testators.
Brussels IV is the expat will's most important sentence. Drafted correctly, it gives you the testamentary freedom of your home jurisdiction over everything you own in Spain.