Children and descendants are entitled to receive two thirds of the inheritance of their parents and ascendants. This is established in the Spanish Civil Code, which in its sections 806 and following regulates the “legitimate share”, which it defines as ‘the portion of assets that the testator cannot dispose of, because the law has reserved it for certain heirs, called forced heirs’.
There are many who consider this system to be anachronistic. When it was established, it sought to protect the family unit, and guarantee the legitimate expectations that children could have of their parents’ assets, preventing these parents from abusing their authority by depriving their children of any inheritance without a serious and justified reason. Nowadays, with the social and structural changes that have essentially modified the concept of the family, those in favour of freedom of testament are gaining ground. If not absolute freedom as in the Anglo-Saxon sphere, at least a freedom in terms that make it possible for any person to decide what to do with their property and rights after their death, just as they can do during their lifetime. If this kind of freedom exists, parents will have the opportunity to reward their children, and even to favour the entrepreneurial spirit of one or more of them.
When in August 2015 the European Regulation 650/2012, on Succession and the Creation of the European Certificate of Succession, came into force, many saw it as an opportunity to consider reforming the system of legitimate share in Spain, a reform that, however, has not yet been undertaken. The European text has a great impact on cross-border inheritances, as it establishes that the applicable law for the distribution of assets must be that of the place of residence of the testator, unless the testator has provided in his/her will the choice of his/her own personal law. On many occasions, it will therefore be necessary to take into account the diversity of regulations on this subject that exist in the different countries of the European Union.
