SPAIN Law and Practice Contributed by: Álvaro Checa, Miguel Checa, José María Vargas-Machuca Reyes and Andrea Fernández Grymierski, KINSHIP
a choice of law in favour of his or her nationality in his or her last will and testament. Therefore, Spanish intestate succession rules apply where a person dies without a valid will and having his or her last habitual residence in Spain. Spain does not have a single uniform succession regime. Several Autonomous Communities (Galicia, the Basque Country, Navarra, Aragon, Catalonia and the Balearic Islands) have legislative competence in civil matters and have enacted their own succession rules. Under the Spanish Civil Code, intestate succession laws follow a hierarchical order: (1) descendants; (2) in their absence, ascendants; (3) in their absence, the surviving spouse; and (4) thereafter, collateral rela- tives, but limited to the fourth degree of kinship. In the absence of entitled relatives, the estate passes to the state. These rules apply similarly in the Balearic Islands and in Galicia. Under Catalonian laws, the surviving spouse or surviv- ing registered partner has priority over the ascendants in intestate succession. Aragon, the Basque Country and Navarra distinguish between bienes troncales (family assets linked to a specific lineage) and other assets, with bienes troncales following a lineage- based order of succession. 3.2 Forced Heirship Spain, like many other civil law jurisdictions, follows a system of forced heirship that significantly limits tes- tamentary freedom. Certain close family members are entitled to a reserved portion of the estate that cannot be freely disposed of by the testator. The scope of forced heirship varies depending on the applicable regional civil law, and, as with intestacy, the determination of the regional civil law will depend on the regional civil status known as vecindad civil , for Spanish nationals, or on the region of habitual resi- dence, for foreigners. Under the Spanish Civil Code, forced heirs are: (1) descendants; (2) in their absence, ascendants; and (3) the surviving spouse (provided that there is no legal
or de facto separation). Where there are descendants, two-thirds of the estate constitute the forced share. The first third must be distributed equally among chil- dren (the “strict” forced share), while the second third may be allocated among descendants at the testa- tor’s discretion. Only one-third of the estate is freely disposable. The surviving spouse is a forced heir, but only with a right of usufruct over a part of the estate. The extent of the usufruct depends on the existence of descendants (usufruct over one-third of the estate) or ascendants (usufruct over one-half of the estate) and is frequently expanded in practice through testamentary planning. A common planning technique in favour of the surviv- ing spouse is Socini’s clause ( cautela socini ), which allows the testator to bequeath the lifetime usufruct right of all the estate assets to the surviving spouse and imposes a condition whereby any heir who chal- lenges this arrangement will be reduced to his or her share of the one-third strict forced share. If a forced heir considers that his or her forced share has been infringed by the provisions of the will or by the manner in which the estate has been distributed, he or she may bring a judicial claim against the other heirs, legatees and, where appropriate, the executor, seeking partial annulment of the last will or compensa- tion for the difference between the value of the forced share and the value of the assets actually received. Other civil law rules in Autonomous Communities vary considerably: • Catalonia and Galicia structure the forced share as a right of legal claim against the estate rather than a direct right over assets. The amount of forced heirship for descendants is one-quarter of the net estate. • The Basque Country provides for a forced share of one-third, structured with greater flexibility in allocation. • Aragon recognises a collective forced share of one- half of the estate and a broad widower’s/widow’s usufruct right. • The Balearic Islands provide different solutions depending on the island. In Mallorca and Menorca, the forced heirship in favour of descendants is of
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