The Catalan forced share (legítima)

What is the forced share?

The forced share (legítima) is the part of the testator’s assets that they cannot freely dispose of, because the law reserves it for certain heirs — known as forced heirs — who may or may not be the same people the testator has named as heirs.

The forced share always depends on the law governing the inheritance: who the forced heirs are, how much they are entitled to and the time limit for claiming it vary from one legal system to another. In Catalonia it is regulated in Book Four of the Civil Code of Catalonia, Articles 451-1 onwards.

Who is entitled to the forced share?

1. First, the deceased’s CHILDREN are forced heirs, in equal shares.
2. If a child died before the deceased, has been disinherited, has been declared unworthy to inherit or is absent, they are represented by their own DESCENDANTS (the child’s share is divided among them).
3. If the deceased had no descendants, the PARENTS are forced heirs, in equal halves.

How much is the forced share?

Under Catalan law, the forced share (legítima) is a right to a sum of money: it does not necessarily consist of assets from the estate. The forced heirs have a claim against the heir, who may pay it either with assets from the estate or in cash. The forced heir may even request a preventive annotation of the claim in the Land Registry.

Overall forced share: it is ONE QUARTER of the sum of the following:

1. The value of the estate’s assets at the time of death, after deducting the debts and the costs of the deceased’s last illness and burial or cremation.
2. Plus the value of the assets given away or transferred free of charge by the deceased in the ten years before death, excluding customary gifts.
3. Plus the value of any gifts that count towards the forced share, whatever their date.
4. And, where the recipient of a gift has transferred the assets or lost them without justification, the value of those assets at the time they were transferred or destroyed.

Individual forced share: the calculation counts the forced heir who is also the heir, as well as any who has renounced, anyone justly disinherited and anyone declared unworthy to inherit. A child who died before the deceased and an absent child do not count, unless they are represented by their descendants.

Can the testator exclude the forced share?

The forced share is a right granted by law. It can only be excluded when the deceased has expressly disinherited the forced heir.

The grounds for disinheritance are strictly limited and can be challenged:

1. The grounds for unworthiness to inherit.
2. Refusing maintenance to the testator, their spouse or stable partner, or the testator’s ascendants or descendants, where there was a legal duty to provide it.
3. Serious ill-treatment of the testator, their spouse or stable partner, or the testator’s ascendants or descendants.
4. Suspension or loss of the parental authority that the forced heir, as a parent, had over the deceased child, or that the forced heir, as a child, had over the deceased’s grandchild, provided this was due to the person who was suspended or deprived of that authority.
5. A clear and continued absence of any family relationship between the deceased and the forced heir, for reasons attributable solely to the forced heir.

If the heirs consider that there are no grounds for disinheritance, or wish to disregard them, the solution is to ask the court to annul them. However, a Resolution of the Directorate-General of Registries and Notaries of 5 October 2018 held that no court decision is required if all the heirs and interested parties agree — bearing in mind that the interested parties include the descendants, that is, those entitled to the forced share.

Can a forced heir waive the forced share?

It is a non-negotiable right during the deceased’s lifetime and cannot be waived by agreement. It is always deemed accepted unless there is an express, outright renunciation.

It is important to bear in mind that renouncing the inheritance or the legacy is understood as renouncing the forced share as well.

What is the time limit for claiming the forced share?

There are two different time limits, depending on whether the 1991 Catalan Succession Code or the current Civil Code of Catalonia applies:

• For deaths before 2009, the time limit to claim is 15 years from the date of death.
• For deaths from 2009 onwards, the time limit to claim is 10 years from the date of death.

However, the transitional provisions of the Civil Code of Catalonia state that the time limits of the previous legislation apply to successions opened before the new law came into force, except where the time limits of Book Four of the Civil Code are shorter; in that case, the right expires at the end of the new time limit, counted from the date the new law came into force.

The parents’ forced share is extinguished if the parent dies without having claimed it in court or by notarial demand after the death of the child.

An individual forced share that has been extinguished becomes part of the estate and never increases the shares of the other forced heirs, without prejudice to the right of representation.