Spanish legítima is the forced heirship rule that limits what a Spanish testator can leave to whom. It divides the estate into three equal thirds: legítima estricta reserved for descendants, mejora distributable among descendants, and libre disposición available for anyone. For foreign nationals in Spain, legítima is either the governing framework — or the rule they want to escape through Brussels IV.
Spanish succession law is civil-law forced heirship at its most developed. Unlike English testamentary freedom, where you can leave everything to whoever you wish, Spanish Código Civil Articles 806 to 857 reserve two-thirds of the estate for descendants as mandatory shares. The remaining third — tercio de libre disposición — is the only portion a testator can direct freely. This is often the first thing British, Irish, American, Canadian, and Australian clients want to change about their Spanish position.
The legítima is not one rule but a family of rules. National Código Civil legítima (Articles 806–857) applies across most of Spain and to most Spanish testators. Regional foral legítimas apply in Catalonia, Aragon, Galicia, the Basque Country, Navarra, and the Balearics — each with its own numerical allocations, heir definitions, and testator flexibility. Catalan legítima, for example, is a cash claim (not an asset allocation) and is only one-quarter of the estate, much more flexible than the national two-thirds.
For foreign nationals, Brussels IV (EU Regulation 650/2012) offers the escape route. A professio iuris electing national law displaces Spanish legítima for substantive purposes. British testamentary freedom, Italian legittima, German Pflichtteil, French réserve héréditaire, Dutch legitieme portie — each can be elected under Brussels IV and will govern the succession. But for Spanish nationals, foreign residents without dual nationality, or anyone who fails to make an express election, legítima applies.
This page explains how legítima works in practice, the three tercios, who qualifies as forced heir, the spousal usufructo viudal, the regional foral variations, how legítima is calculated, what happens when it is breached, how the Brussels IV election displaces it, and the drafting strategies Platinum Legal Spain uses to maximise testamentary flexibility within or outside the Spanish forced heirship framework.
Spanish legítima is built on one central idea: descendants cannot be cut off. The common-form rules under the national Código Civil use three equal tercios. The regional foral systems deviate from this significantly. Both operate under the shadow of Brussels IV.
Article 808 CC reserves the tercio de legítima estricta — one-third of the estate — divided equally among all living children or their representative heirs. No child can be cut out of this third; no child can receive more than an equal share of it.
Legítima estricta mechanicsArticle 823 CC provides the tercio de mejora — a second third that the testator can divide among the descendants as they wish. It can go to all children equally, to one child, to grandchildren, or to any combination of descendants — but only to descendants.
Mejora flexibilityThe remaining third — tercio de libre disposición — can be left to anyone: the surviving spouse, friends, charities, distant relatives, non-descendants. This is the only truly free portion of the estate under national legítima.
Free disposition useArticle 834 CC gives the surviving spouse a usufructo (life interest) over the tercio de mejora where there are descendants. Where there are only ascendants, usufructo over half; no descendants or ascendants, usufructo over two-thirds. Ownership passes to descendants.
Spousal rightsCatalonia: one-quarter cash claim. Aragon: no forced share for descendants but protection for minor/disabled children. Galicia: one-quarter for descendants. Basque: one-third for descendants with wider spousal rights. Navarra: no forced share. Balearics: varies by island.
Foral legítima by regionA foreign national with an express professio iuris of national law under Article 22 of EU Regulation 650/2012 displaces Spanish legítima for substantive purposes. English testamentary freedom, German Pflichtteil, etc. governs instead — subject to narrow public policy limits.
Brussels IV escapeLegítima is often described in English-language guides as a two-thirds mandatory share for children. This is half-right. The legítima is two-thirds in nominal scope, but only one-third of that — the tercio de legítima estricta — must go equally to all children. The other third — the tercio de mejora — is descendants-only but flexible within that class. A testator can use the mejora to favour one child over another, to bring in grandchildren, or to skip a generation entirely. Combined with the libre disposición third, a testator has real flexibility in two-thirds of the estate.
The surviving spouse position is often misunderstood. Spanish legítima gives the spouse usufructo, not ownership. Where there are descendants, the spouse takes usufructo over the tercio de mejora only — a life interest over one-third of the estate. Ownership passes to the descendants, subject to the spouse's life interest. Where there are no descendants but there are ascendants, the spouse takes usufructo over half. Where there are no descendants and no ascendants, the spouse takes usufructo over two-thirds. Compared to English spousal rights (no forced share but strong intestate entitlement), Spanish spousal position looks weak — which is why mixed English-Spanish couples often prefer a Brussels IV election of English law.
Regional foral legítimas produce dramatically different outcomes. A Catalan-resident testator under Catalan foral law (Llibre Quart del Codi Civil de Catalunya) has a legítima of only one-quarter of the estate, payable in cash to descendants, with very wide testamentary freedom over the remaining three-quarters. A Navarre-resident testator under Fuero Nuevo has no forced share for descendants at all — complete testamentary freedom. An Aragonese-resident has no mandatory shares for adult children but strict protection for minors and disabled children. These foral systems are not mere regional tweaks — they are substantially different forced heirship frameworks.
We confirm whether national Código Civil legítima or a regional foral legítima applies (by reference to the testator's vecindad civil for Spanish nationals, habitual residence for foreign nationals). We identify whether Brussels IV election of foreign law is available and appropriate.
We identify all descendants (living and representative), the surviving spouse, ascendants where relevant, and calculate the hipotético hereditario — the notional estate value against which legítima is measured. Lifetime gifts to legitimarios are added back under colación.
We design the allocation across the three tercios: legítima estricta (mandatory equal), mejora (flexible among descendants), libre disposición (anyone). Usufructo viudal is layered in where the surviving spouse is to benefit. Pactos sucesorios used where regional law permits.
We draft the Spanish will (testamento abierto before a notary) with clear tercio allocations and usufructo provisions. For foreign nationals, a Brussels IV election is either included (displacing legítima) or deliberately excluded (preserving legítima). Execution and registration follow immediately.
The national Spanish Código Civil legítima is codified in Articles 806 to 857. Article 806 defines the legítima as "the portion of goods of which the testator cannot dispose because the law has reserved it to certain heirs, called for that reason forced heirs (herederos forzosos)". Forced heirs under Article 807 are: children and descendants, in relation to parents and ascendants; parents and ascendants, in relation to children and descendants where there are no descendants; and the widow or widower, in the form and scope established by the code.
The legítima calculation starts with the hipotético hereditario — the notional estate value. This includes all assets owned at death, plus all lifetime gifts to forced heirs (colación under Article 1035 CC), minus all debts and funeral expenses. From this base, the legítima is calculated as a fraction: two-thirds where there are descendants, one-half where there are ascendants but no descendants. The remaining portion is freely disposable.
The tercio de legítima estricta (Article 808) must pass equally to all children. A child dying before the testator is represented by their descendants (right of representation under Article 924). A child may be disinherited only for one of the narrow grounds listed in Articles 853 to 855 — essentially severe misconduct such as refusing support, attempted murder, serious physical or mental abuse. Mere estrangement is not a legal ground for disinheritance.
The tercio de mejora (Article 823) can be distributed among descendants — children, grandchildren, great-grandchildren — in any proportion the testator chooses. It can favour one child over another, it can skip a generation, it can be used to equalise children's positions (where one received large lifetime gifts), or it can be used to support a disabled or dependent descendant. The only constraint is that it cannot leave the descendant class.
The tercio de libre disposición (Article 808 last paragraph) is the testator's free portion. It can go to anyone — the surviving spouse, a charity, friends, distant relatives, non-descendants. For testators wanting to leave significant assets to the surviving spouse (beyond the usufructo viudal), the libre disposición is the vehicle.
The usufructo viudal (Articles 834–840) is the surviving spouse's reserved right. Where there are descendants, Article 834 gives the spouse a usufructo over the tercio de mejora only — life interest over one-third. Where there are only ascendants, Article 837 gives usufructo over half. Where there are no descendants or ascendants, Article 838 gives usufructo over two-thirds. The usufructo is commutable under Articles 839-840: the heirs (with the spouse's consent) can substitute a life annuity, a capital sum, or specific assets for the usufructo.
Disinheritance (Articles 848–857) is strictly limited. The grounds are listed exhaustively and include: refusal to provide support to the testator (Article 853); serious physical or mental abuse of the testator or their spouse (Article 853); conviction for attempting against the life of the testator or their family (Article 756); and — for descendants only — fraudulent activities that cause loss to the testator. The disinheritance must be expressly set out in the will with the legal ground stated. Bare disinheritance without ground is void; the forced heir then takes their full legítima.
Colación (Articles 1035–1050) requires forced heirs who received lifetime gifts from the testator to "collate" those gifts — bring their value back into the estate for legítima calculation. Gifts to non-forced-heirs are not collated. Colación is default rule; the testator can expressly dispense with it ("sin obligación de colacionar") in the deed of gift or in the will. For descendants facing very unequal lifetime gifts, colación can produce startling outcomes — a child who received €500k during the testator's lifetime may find their inheritance reduced by the value of that gift.
The preterición (preterition) rules under Articles 814-816 address the case of a forced heir omitted from the will. Complete preterición of all forced heirs voids the instituciones hereditarias (institutions of heirs) but preserves specific legacies up to the libre disposición. Partial preterición of some forced heirs reduces the instituciones proportionately. A will that forgets a child entirely is not enforceable as written — the child still takes their legítima.
Regional foral legítimas vary materially. Catalan legítima (Llibre Quart del Codi Civil de Catalunya, Articles 451-1 to 451-27) is a cash claim of one-quarter of the net estate, payable to descendants. It can be satisfied in cash, specific assets, or a combination. Spouses are not legitimari in Catalonia; they have a widow's right (quarta vidual) if economic need is shown. Aragonese legítima (Código del Derecho Foral de Aragón) applies only to minor or disabled descendants — adult able-bodied children have no forced share. Galician legítima (Ley 2/2006 de Derecho Civil de Galicia) is one-quarter for descendants, payable in cash or kind. Basque legítima (Ley 5/2015 de Derecho Civil Vasco) is one-third for descendants, with wider spousal rights. Navarre under Fuero Nuevo has no forced share for descendants — complete testamentary freedom, the most permissive regime in Spain. Balearic legítima varies by island (Compilación del Derecho Civil de las Islas Baleares) — Mallorca and Menorca one-third, Ibiza/Formentera no forced share.
Vecindad civil (civil residence) determines which Spanish regime applies to a Spanish national. Vecindad civil is acquired by birth, residence (continuous 10-year residence in a region), or express declaration before a Registro Civil. A Spanish national born in Madrid who has lived in Barcelona for 15 years has Catalan vecindad civil (and therefore Catalan legítima applies) unless they expressly declared otherwise. For foreign nationals, habitual residence determines which Spanish regime would apply under Article 21 — but Brussels IV election of national law displaces this.
Pacto sucesorio (succession agreement) is available in foral regions. Articles 1056 and 1271 CC generally prohibit pactos sucesorios under national law. Catalonia allows pactos d'institució (heir institution pacts) and pactos de millora (mejora pacts) under Articles 431-1 to 431-30 LC. Aragon allows pactos de presente or de futuro under Articles 377-381 CDFA. Galicia allows mellora de labrar e posuir and pacto de apartación. Balearics and Basque Country have their own variants. Pactos sucesorios are powerful estate planning tools in these regions — they allow lifetime commitments about succession that cannot be revoked unilaterally.
Brussels IV interaction: Article 22 election of foreign law displaces Spanish legítima for substantive purposes. A British national habitually resident in Madrid who elects English law leaves the Spanish forced heirship system entirely — English testamentary freedom governs. A French national in Sevilla who elects French law replaces Spanish legítima with French réserve héréditaire (typically a better fit for minor children; worse fit for adult children). The election is narrow in scope — it governs substantive succession, not Spanish IHT and not the procedural rules of the Spanish notary/registry system.
Public policy (orden público) limits on Brussels IV election appear at Article 35 of the regulation. Spanish courts can refuse to apply a foreign provision that is "manifestly incompatible" with Spanish public policy. In legítima terms, this narrow safety valve has been used sparingly — usually only where the foreign law produces extreme results that shock Spanish legal conscience. Severe disinheritance of minor children, religious-discrimination rules, and exclusion of a destitute spouse are the archetypal triggers. Routine English testamentary freedom is accepted without difficulty.
Two-thirds mandatory to descendants — with one third flexible within the descendants class. This is the national rule. Foral regions and Brussels IV can dramatically change the picture.
Request a Spanish Legítima Estate ConsultationParents resident in Spain with children in Spain; non-resident property owners leaving Spanish assets to heirs abroad; surviving spouses, siblings, aunts and uncles, grandparents — every cross-border configuration follows a different rulebook.
Madrid resident, Código Civil legítima applies. Estate €900k. Tercio de legítima estricta €300k split equally (€100k each). Tercio de mejora €300k allocated entirely to the disabled middle child. Libre disposición €300k to surviving spouse. Usufructo viudal superimposed on the mejora.
Barcelona resident with Catalan vecindad civil. Catalan legítima applies — one-quarter cash claim to descendants. Estate €1.2m: €300k legítima as cash to two children; remaining €900k freely disposable. Complete flexibility over three-quarters of the estate.
Brussels IV election of English law. Spanish legítima displaced entirely. Full testamentary freedom — entire €800k Spanish estate to surviving spouse. Adult children can challenge on Inheritance (Provision for Family and Dependants) Act 1975 grounds but cannot claim Spanish legítima.
Pamplona resident with Navarrese vecindad civil. Fuero Nuevo applies — no forced share for descendants. Complete testamentary freedom. Estate distributed entirely to surviving spouse with remainder to named charities. Children have no legítima claim.
Madrid testator gave €400k to one son during lifetime; estate at death €800k. Hipotético hereditario €1.2m. Legítima estricta €400k split equally between two sons (€200k each). Son who received lifetime gift already had €400k — collation deducts the €200k legítima share from his €400k, so he takes only an additional €200k from the estate.
Deceased Valencian testator, widow plus two children (ages 8 and 11). Usufructo viudal over tercio de mejora. Children inherit legítima estricta plus mejora subject to widow's usufructo. Free disposition third left to widow. Combined position gives widow effective control of majority of estate during her life.
Only one-third — the tercio de legítima estricta — is mandatory equal. The mejora third is descendants-only but flexible. Misunderstanding this loses important drafting flexibility.
Usufructo viudal is automatic where applicable. Drafting that ignores it creates title complications for descendants' ownership shares and requires subsequent renunciation or commutation.
Catalan residents have Catalan legítima, not national. Aragonese residents have Aragonese. Applying the wrong regime invalidates the drafting. Vecindad civil analysis matters.
Lifetime gifts to descendants are collated by default. Without express dispensation, large lifetime gifts can create unintended inheritance imbalances. Document colación treatment in every lifetime gift deed.
Bare disinheritance without a legal ground under Articles 853-855 is void. The omitted forced heir takes their full legítima. Properly pleaded disinheritance (with expressly stated ground and supporting evidence) can work but is rare.
For foreign nationals, silence on Brussels IV defaults to habitual residence law under Article 21. A British testator habitually resident in Spain without an explicit election is caught by Spanish legítima despite being British. Always address the election one way or the other.
Vecindad civil determines whether national Código Civil legítima or a foral regime applies. Estate planning within the applicable legítima framework, with use of mejora flexibility and libre disposición for wider family and spouse.
British, Irish, US, Canadian, Australian, New Zealander nationals who elect their national testamentary-freedom law under Brussels IV. Complete escape from Spanish legítima; national law governs.
Foreign nationals who want Spanish legítima to apply — usually because they want the protection for descendants or the familiar framework. No express election, habitual residence default under Article 21.
Spanish-British, Spanish-French, Spanish-Italian couples. Spanish spouse's estate governed by Spanish legítima (or foral variant). Foreign spouse's estate elects foreign law under Brussels IV. Coordination prevents conflict.
Catalan, Aragonese, Galician, Basque, Navarrese, Balearic testators operating under their regional legítima. Pactos sucesorios where available provide powerful living-commitment tools not available under national legítima.
Blended families, disabled heirs, estranged descendants, lifetime gift complications. Detailed mejora drafting, express colación treatment, proper disinheritance where grounds exist, Brussels IV election where appropriate.
Brussels IV applied, wills drafted, Spain and Spanish tax positions coordinated, deadlines tracked.