Inheritance in Spain: the legitime, the tax and the deadlines worth knowing

A poorly planned succession frequently gives rise to disputes between heirs and a tax burden that, with foresight, could have been avoided. An understanding of five essential points —the legitime, the tax, the deadlines, the forms of acceptance and the partition— prevents most disputes. We set them out with the necessary rigour and with reference to the applicable rules.

The legitime: what the law reserves for certain heirs

The legitime is the portion of assets that the testator cannot freely dispose of because it is reserved by law for certain forced heirs (Article 806 of the Civil Code). Under common civil law, descendants are entitled to two thirds of the estate: one third of strict legitime, shared equally, and one third of betterment, which the deceased may distribute unequally among children or grandchildren (Articles 808 and 823). In the absence of descendants, the ascendants are forced heirs, entitled to a third or a half depending on whether or not they share with the surviving spouse (Article 809).

The surviving spouse does not receive ownership, but a usufruct: of the betterment third where they share with descendants (Article 834), of half the estate where they share with ascendants (Article 837), and of two thirds where there are neither (Article 838). Being unaware of these rules is one of the most frequent causes of challengeable wills.

Disinheritance and preterition: two figures worth knowing

A forced heir may only be deprived of the legitime on the grounds exhaustively listed in Articles 853 to 855 (among others, physical mistreatment or the unjustified refusal of maintenance), which must be expressed in the will; otherwise, the disinheritance is treated as not made. Preterition —the omission of a forced heir— may result in the annulment of the appointment of heir (Article 814). These are technical questions in which a drafting error compromises the entire succession.

Inheritance Tax depends on the autonomous community

Inheritance and Gift Tax is a State tax (Law 29/1987), but its administration and much of its rules are devolved to the autonomous communities, so that allowances, reductions and rates vary substantially from one territory to another. In the Region of Murcia, descendants, the spouse and ascendants (kinship groups I and II) enjoy a 99% allowance on the tax payable, which reduces the tax to a minimal fraction in the most common family succession. To this are added relevant State reductions, such as the 95% reduction for the deceased's main home or for the transfer of the family business (Article 20.2.c of Law 29/1987), subject to retention requirements.

The deadlines: six months, extendable

The deadline to self-assess the tax is six months from death (Article 67 of the Inheritance and Gift Tax Regulations). An extension of a further six months may be requested, but it must be applied for within the first five (Article 68). Failure to comply entails surcharges for late filing and late-payment interest. It is advisable to start early, as drawing up the inventory, valuing the assets and gathering the documentation takes time. The transfer of urban property also generates the municipal capital gains tax (IIVTNU), whose calculation method was amended following Constitutional Court judgment 182/2021.

Accept, renounce or accept under benefit of inventory

To inherit is not only to receive assets: debts are also inherited. Faced with an inheritance of uncertain content, the person called has three options:

• Unconditional acceptance: the heir is liable for the deceased's debts even with their own assets (Article 1003). It is the riskiest option where the real extent of the inheritance is unknown, and it may occur tacitly through certain acts of disposal, so caution is advisable.
• Acceptance under benefit of inventory: the heir is liable only up to the value of the inherited assets, with their personal estate protected (Articles 1010 et seq.). It is the prudent route where there are doubts about the liabilities, and it requires drawing up an inventory within the deadline.
• Renunciation: it must be made by public deed (Article 1008); the renouncer receives nothing, but is also not liable for the debts.

The partition: where many disputes arise

Allocating specific assets to each heir (the partition) is, in practice, the most delicate stage. It may have been ordered by the testator, entrusted to an estate divider (contador-partidor) or carried out by common agreement; failing agreement, judicial partition is available. A well-designed partition —attentive to the nature of the assets and their taxation— avoids unwanted co-ownership and disputes between siblings.

How we support you at RCM Legal

Before accepting, it is advisable to know the content of the inheritance, its tax cost and the most suitable form of acceptance, since a hasty decision may bring financial loss or family disputes that are difficult to reverse. At RCM Legal we order the succession from start to finish: inventory, partition, settlement of the tax applying the relevant reductions and allowances —including the regional allowance of the Region of Murcia— and the resolution of disputes between heirs when they arise. If you have inherited or wish to put your succession in order during your lifetime, tell us about your case.