In the distribution of inheritances there is always a question that we take for granted, but that may not be, and that is whether parents are obliged by law to leave all their children the same amount. In this sense, Laura Lobo, a lawyer specialized in family, inheritances and inheritance and gift taxes, explains that it is not mandatory to distribute the inheritance equally among the children. The Civil Code allows a wide margin to decide who benefits most, always respecting the so-called strict legitimacy.
As Laura Lobo explains in a video published on her TikTok channel, “the fact of having several children and that they are all forced heirs does not mean that the inheritance has to be distributed equally.” In Spain, the law only imposes this obligation on a specific part of the estate.
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Only one third should be shared equally
The strict legitimate inheritance, included in article 808 of the Civil Code, is the only third of the inheritance that must be distributed equally among all the children. This is a portion reserved by law for forced heirs (descendants, ascendants or spouse), and the testator cannot deprive them of it except in very specific cases of disinheritance.
The other two thirds of the assets, improvement and free disposal, can be assigned more freely. “The third of the improvement can be allocated to children or descendants, but the testator can decide to distribute it however he wants: give more to one and less to another, or even all to a single child,” explains Lobo.
For its part, the freely available third can be granted “to whomever you wish, whether to a specific child or to any other person, even outside the family.”
Two thirds of the inheritance are of free choice
This means that, in practice, parents can decide the fate of two-thirds of their inheritance, benefiting one of the children without implying disinheritance or an illegal act. “The Civil Code leaves you room to decide on 66% of your assets. Only a third should go equally to everyone,” summarizes the lawyer.
This flexibility allows the distribution to be adapted to the personal or economic circumstances of each child, rewarding those who have taken care of the parents or compensating for previous inequalities. However, for the testator’s will to be fulfilled, it is essential to reflect it in a notarial will, thus preventing the inheritance from being automatically distributed among the descendants in equal parts in the event of death without a will (intestate succession).
The importance of planning and making a will
Lobo explains that planning the inheritance avoids family conflicts. The will is what allows you to decide how the assets should be distributed, to whom it is improved and what part is left freely available, but always within the limits that are included in articles 806 to 808 of the civil code (can be consulted in this BOE).
Furthermore, making a will makes the procedures easier as well as reduces subsequent costs, especially in tax matters, since we remember that inheritances are subject to the Inheritance and Donation Tax that is regulated in Royal Decree 1629/1991.
Distributing an inheritance without a will can lead to family disputes and legal proceedings which can drag on over time. For this reason, experts insist that each person should record their wishes during life, clearly explaining how they want their assets to be distributed.
“The law gives you tools to benefit whoever you want without harming others or violating the legitimate right,” recalls Lobo. “It is not about disinheritance, but about planning fairly and consciously.”