The legítima is the part of the estate Spanish law reserves for certain forced heirs — mainly descendants and, in some cases, ascendants — even when the will says otherwise. In Madrid we see “creative” wills giving 100% to one child or a partner while another child is excluded or underpaid. That is not fixed by a family chat; it needs calculation, action to top up the legítima or negotiation with real numbers. This analysis explains what the legítima is, how it is broadly calculated and where DIY plans fail.
Forced heirs and the basic idea of share
Forced heirs are those the law protects with a minimum portion. In typical successions children are central; if there are no descendants, ascendants or other figures may apply depending on the case.
The legítima is not “what the parent wanted to give” but what must remain in the estate once debts are counted and assets valued. Wills and legacies compete with that floor.
The testator may freely dispose of the non-reserved part (classically the “free third” with three children, with variations by number of forced heirs). Confusing free disposal with “anything goes” produces partial nullity and years of court.
With several forced heirs the legítima splits among them under the Civil Code. A will favouring one without compensating others is a red flag.
How it is calculated (no magic formula)
First fix the estate: assets minus real liabilities. Property at reasonable market value, shares, accounts, and the deceased’s debts that are not purely personal to one heir.
On that mass the legitim mass and each heir’s share are determined. Lifetime gifts, certain legacies and prior donations may enter the calculation — where home drafts usually fail.
Bank balance alone is not enough. A mortgaged flat, indebted company or donation ten years ago can change the outstanding legítima entirely.
We map this before recommending suit, renunciation or settlement. Sometimes the issue is not the legítima itself but no liquidity to pay it without selling the only property.
Harsh wills and the action to top up
If the will short-changes the legítima, the forced heir may bring the complement action (and challenge dispositions where relevant). Deadlines and form matter; sleeping on the right can lose it.
Litigation is not always first choice. Sometimes partition deeds fix it; sometimes one heir must pay cash for excess received. Liquidity drives strategy.
Partner, legacies to third parties and life insurance can complicate the board. Each layer needs checking whether it falls inside the estate or outside.
Family narrative (“father knew what he was doing”) does not replace legal review. We see notarially perfect wills that are seriously wrong on forced shares.
Prior gifts and sibling pacts
Lifetime gifts may affect the calculation through collation or imputation depending on how they were made and what the will says. “I already gave him the flat” does not close the debate without documents.
Post-death sibling pacts (waivers, offsets) must respect the legítima of non-signers and minors. A WhatsApp deal is worthless before notary or court.
With a family business, legítima clashes with valuing shares and corporate agreements. Succession then crosses into corporate law.
Planning in life is usually cheaper than repair after death. When that is impossible, at least know the size of the hole.
What to bring to first review
Will, approximate inventory, death certificate and list of potential heirs.
Prior gifts, property deeds, debt statements and any sibling correspondence on division.
If minor forced heirs are involved, any deal must follow the right formalities.
With that we say whether a legítima is materially due, and whether complement, settlement or negotiated partition fits. Partner-level criteria, not a generic online calculator.