Legitima under the Civil Code comun -- two-thirds reserved for children
Spain's Civil Code (Codigo Civil comun, which applies outside the country's own regional foral-law
territories) reserves two-thirds of an estate for descendants: a strict one-third legitima divided
equally among children, and a further one-third “tercio de mejora” that the testator may
allocate unequally among descendants. The remaining one-third is freely disposable. A surviving spouse
does not receive outright ownership of a reserved share but instead a usufruct, whose fraction depends
on who else survives -- usufruct of one-third where descendants survive, one-half where only ascendants
survive, and two-thirds where neither survives. Parents and other ascendants have their own reserved
share, but only in the absence of surviving descendants.
Regional (foral) variations are a genuinely important nuance. Spain's forced-heirship rules are not uniform nationally. Several autonomous communities --
Catalonia, the Basque Country, Navarre, the Balearic Islands, and Galicia -- apply their own distinct
foral succession regimes rather than the Civil Code comun described above, often with materially
different (and sometimes smaller or more flexible) reserved shares. Which regime applies turns on the
deceased's vecindad civil -- a specific Spanish regional civil-law status -- rather than simply where in
Spain the person happened to live. An NRI settled in one of these regions should confirm their applicable
regime with a Spain-qualified succession lawyer rather than assuming the Civil Code comun figures above
apply.
EU Succession Regulation 650/2012 (Brussels IV) -- the choice-of-law planning tool
As an EU member state, Spain applies EU Succession Regulation 650/2012, commonly called Brussels IV.
Under its default rule, the law of the deceased's country of habitual residence at the time of death
governs the succession of the entire estate -- so an Indian citizen habitually resident in Spain would,
by default, have Spanish succession law (whichever regional variant applies) govern their whole estate.
Article 22 allows an individual to make a professio juris choice-of-law election in a will, selecting
the law of any country of which they hold nationality -- such as India -- to govern their succession
instead. This election is the key planning step an NRI in Spain needs to take to avoid Spanish forced
heirship applying to their estate by default once they become habitually resident there; it should
generally be made in a notarial will in Spain, ideally registered in Spain's Registro General de Actos
de Ultima Voluntad, and coordinated carefully with any parallel Indian will. Note that this election
governs succession law, not Spanish inheritance tax liability, which remains a separate matter.
Why Spanish succession law does not touch assets located in India
For a Spain-based person of Indian origin (or an Indian citizen resident in Spain) who dies owning
property in India, the applicable Indian succession law depends on personal law exactly as it would for
anyone else -- the Hindu Succession Act, 1956 for Hindus, Sikhs, Jains and Buddhists; Muslim personal law
for Muslims; and the Indian Succession Act, 1925 for Christians, Parsis, and those who die leaving a
valid will governing testamentary succession generally. Heirs based in Spain seeking to access a deceased
relative's Indian bank accounts, securities, or movable assets typically need a Succession Certificate
from the relevant Indian court (or Letters of Administration/Probate where a will exists), and can pursue
this through a Power of Attorney authorizing a representative in India, avoiding the need to travel to
India for most stages of the process.
Common mistakes NRIs in Spain make with succession matters:
- Not making a professio juris election in a Spanish will, leaving Spanish forced heirship rules
to apply by default once habitually resident in Spain.
- Assuming the Civil Code comun's figures apply uniformly, when a regional foral regime -- turning
on vecindad civil, not just residence -- may actually govern.
- Assuming a Brussels IV election also resolves Spanish inheritance tax exposure -- it does not;
tax liability is a separate matter.
