Forced Heirship in Spanish Law

Abstract

Although the Spanish Civil Code is especially restrictive on the will of the deceased since it imposes the duty to protect the family by means of fixed shares called legitimas, this system has been softened in the latest legal reforms, testamentary practices and a new, more flexible orientation of case law on the causes for disinheritance since 2014. Legal institutions such as the mejora (improvement of some of the forced heirs), the non-penalising nature for the testator on the rules on unfair disinheritance or intentional omission (preterition) or payment of the legitima in cash in some cases give the testator some margin for decision-making despite the high amount of the forced share (two thirds of the estate for the descendants). Nevertheless, the legal system is still held to be excessively restrictive in the eyes of society and the legal community alike. This has therefore brought about various different proposals for reform, ranging the keeping of the current system but with various reforms such as reducing the forced heirs and amounts, converting it into a post mortem maintenance right in the measure of the real needs of the relatives and spouse or the abolishment of the forced heir altogether. This paper examines the history of forced heirship in Spain and assess critically the law in force as for the beneficiaries, the calculation and protection measures, the usual techniques to override in practice and the arguments in favor of the preservation of the forced heirship or in favor of a greater freedom of testation, with account of the latest developments in case law and the recent 2017 proposals to reform the Law of Succession in this respect.