Legacy vs Inheritance in Spain: Key Differences for Expats

🇪🇸 Read the original in Spanish

When planning the future of our estate or facing the loss of a loved one, legal concepts often arise that are easily confused but have radically different implications. In Spanish succession law, the difference between an inheritance and a legacy is not a mere matter of nomenclature, but a crucial distinction that determines who pays the debts, how assets are distributed, and what tax obligations are generated. Understanding these concepts under the framework of the Civil Code is the first step to avoiding complex family conflicts and optimising the tax bill of a transfer that, sooner or later, affects us all.

What is an inheritance and what is a legacy? Definition and legal framework

To understand the difference, we must look to the *Spanish Código Civil (CC - Civil Code), which regulates successions in its Title III. The key to the distinction lies in the way in which the deceased (causante*) is succeeded.

*Article 660 of the Código Civil** defines it with absolute clarity: “An heir is one who succeeds under a universal title, and a legatee is one who succeeds under a particular title.”*

The Heir (Heredero): The successor under a universal title

The heir is the person who succeeds the deceased in the entirety of their rights and obligations, or in a proportional share of them (for example, one-third of the inheritance).

• Scope: They receive both assets and rights (properties, money, shares) as well as debts and obligations (mortgages, loans, guarantees).
• Liability: The heir is liable for the debts of the deceased, even with their own personal assets, unless they accept the inheritance a beneficio de inventario (under benefit of inventory).
• Existence: The figure of the heir always exists. If there is no will, the law designates the intestate heirs (sucesión ab intestato).

The Legatee (Legatario): The successor under a particular title

The legatee is an acquirer of a specific and determined asset or right designated by the testator.

• Scope: They receive a specific element of the estate (a particular flat, a piece of jewellery, an exact amount of money, or the usufructo (usufruct/life interest) of an asset).
• Liability: Unlike the heir, the legatee is not liable for the debts of the inheritance, except in very exceptional cases (for example, if the entire estate is distributed in legacies or if the legacy is encumbered with a mortgage). Their liability is limited to the value of the legacy itself.
• Existence: A legacy can only exist if there is a will. There is no such thing as a "legatee by law" in an intestate succession.

Key differences between inheritance and legacy

| Concept | Heir (Universal Succession) | Legatee (Particular Succession) | | :--- | :--- | :--- | | Origin | By will or by law (intestate succession). | Only by will. | | Assets received | All or a proportional share of the undivided estate. | A specific and determined asset, right, or benefit. | | Assumption of debts | Yes, liable for debts (unless accepted under benefit of inventory). | No, unless the testator imposes it as a limit/charge. | | Possession of assets | Acquired automatically upon accepting the inheritance. | Must request the delivery of the asset from the heir or executor. | | Renunciation | Can repudiate the inheritance, passing their share to others. | Can reject the legacy, which will then be integrated into the general estate. | | Right of representation | Yes, under the terms established by law. | Does not exist, unless the testator provides for a substitution. |

The insurmountable limit: The legítima and regional laws

A fundamental aspect of Spanish law is that the testator does not have absolute freedom to bequeath their assets as they wish. *Article 806 of the Código Civil** defines the legítima (forced heirship share) as “the portion of assets that the testator cannot dispose of because the law has reserved it for certain heirs, called for this reason forced heirs (herederos forzosos).”*

Forced heirs (children and descendants; in their absence, parents and ascendants; and the surviving spouse) are entitled to a proportional share of the estate. Therefore, *a legacy cannot prejudice the legítima of the forced heirs. If a legacy exceeds the freely disposable portion (tercio de libre disposición) and detracts from the legítima*, it will be considered "inofficious" and must be reduced or annulled.

Particularities of Regional Laws (Derechos Forales)

It is vital to bear in mind that different civil legislations coexist in Spain. If the deceased had their vecindad civil (civil residence/regional legal status) in Catalonia, Aragon, the Balearic Islands, Galicia, Navarre, or the Basque Country, their respective regional laws (derechos forales) will apply. In these regions, forced heirship shares, the freedom to testate, and the rules surrounding legacies present very significant variations (for example, in Catalonia the legítima is only one-quarter of the estate, compared to the two-thirds established by the common Código Civil).

Practical examples with figures

To visualize the financial and real estate impact of these concepts, we analyze two common scenarios:

Example 1: The legacy of a property with a mortgage

Let us imagine that Don Manuel passes away and leaves in his will a flat in Madrid valued at €220,000 to his nephew Carlos as a legacy. The rest of his estate (bank accounts worth €80,000 and a personal loan debt of €30,000) is destined for his only daughter and heir, Sofía. The bequeathed flat has an outstanding mortgage of €40,000.

• Who pays the personal loan debt? Sofía, as the universal heir, assumes the €30,000 debt.
• Who pays the mortgage on the bequeathed flat? Pursuant to *Article 867 of the Código Civil, the payment of the mortgage (a charge on the property) corresponds to the heir (Sofía) and not to the legatee, unless the testator expressly states otherwise. Sofía must clear the €40,000* debt. Carlos receives the flat free of charges.
• Net result: Carlos (legatee) receives a net asset of €220,000. Sofía (heir) receives €80,000 in cash but must pay €70,000 in debts (loan + mortgage), leaving her with a net amount of €10,000.

Example 2: A legacy that infringes upon the legítima

Doña Carmen passes away with a total estate of €300,000. She has two children, Lucas and Marta. In her will, Doña Carmen appoints her best friend, Juan, as a legatee, leaving him an apartment valued at €180,000. The rest of the estate (€120,000 in cash) is left to her children in equal shares.

• *Calculation of the legítima (common Civil Code): The legítima* of the children is two-thirds of the hereditary estate (€200,000 in total, i.e., €100,000 for each child).
• The problem: By leaving only €120,000 to be divided between the children, each would receive €60,000, which violates their strict legítima.
• The legal solution: The legacy of €180,000 to Juan is inofficious because it exceeds the one-third freely disposable portion (€100,000). The legacy must be reduced by €80,000 so that Lucas and Marta can receive their legítima of €100,000 each. Juan will end up receiving financial compensation or a co-ownership share of the apartment equivalent to €100,000 instead of the initial €180,000.

Practical step-by-step procedures to receive a legacy or inheritance

The process for acquiring assets varies substantially depending on whether you are an heir or a legatee. Here are the steps that must be followed:

1. Obtaining death and last will certificates: Once 15 business days have passed since the death, you must request the Death Certificate (Certificado de Defunción) from the Civil Registry and, subsequently, the Certificate of Last Will (Certificado de Actos de Última Voluntad) to confirm whether a will exists and before which notary it was signed.
2. Obtaining an authorized copy of the will: If there is a will, the heirs or legatees must go to the corresponding notary's office to request an authorized copy (copia autorizada).
3. Inventory and valuation of assets: An inventory of all the assets, rights, and debts of the deceased as of the date of death is prepared.
4. Acceptance and allocation (for heirs): The heirs must appear before a notary to sign the public deed of acceptance and partition of the inheritance (escritura de aceptación y adjudicación de herencia).
5. Delivery of the legacy (critical step for the legatee): The legatee cannot take possession of the bequeathed asset on their own authority (Article 885 of the CC). They must formally request the delivery of the asset from the heir or the authorized executor (albacea). This is formalized through a legacy delivery document.
6. Settlement of taxes: Both heirs and legatees must settle the Inheritance and Gift Tax (Impuesto sobre Sucesiones y Donaciones - ISD) and, if urban real estate is involved, the Municipal Capital Gains Tax (IIVTNU or Plusvalía Municipal).
7. Registration in the registries: Presentation of the deeds to the Land Registry (Registro de la Propiedad) to register the properties under the names of the new owners.

Deadlines, amounts, and key figures you must know

The management of an inheritance or legacy is subject to strict time and tax controls in Spain:

• 6 months: This is the legal deadline to settle the Inheritance and Gift Tax and the Municipal Capital Gains Tax from the date of death. An extension of an additional 6 months can be requested, provided it is applied for within the first 5 months of the initial period.
• 4 years and 1 month: This is the limitation period for the regional Tax Agency (Agencia Tributaria) to claim payment of the Inheritance Tax.
• 30 years: This is the general limitation period to claim an inheritance or the assets belonging to it (action for the petition of inheritance).
• From 7.65% to 34%: These are the state tax rates on the Inheritance Tax scale, although most Autonomous Communities apply bonuses of up to 99% for direct relatives (Group I and II), reducing the tax to symbolic amounts. However, legatees who are not direct relatives (friends, collateral relatives) may face very high real tax rates due to multiplier coefficients based on their pre-existing wealth.

Mistakes you must avoid

• Taking possession of the legacy on your own accord: It is a very common mistake for a legatee to enter the bequeathed flat or take the jewellery left in a will without the express authorization of the heirs. This can invalidate the transfer or generate conflicts due to misappropriation.
• Accepting the inheritance "purely and simply" when there are debts: If you suspect that the deceased had debts that exceed their assets, you should always accept the inheritance a beneficio de inventario (under benefit of inventory). Otherwise, you will be liable for the debts with your own personal assets.
• Forgetting the tax implications for non-family legatees: Leaving a valuable legacy to a friend or a distant nephew can turn into a "poisoned chalice" if they do not have the cash to pay the Inheritance Tax. The tax bill can exceed 40% or 50% of the asset's value in some autonomous communities due to the lack of family tax reductions.
• Failing to provide for a substitution in the legacy: If the legatee passes away before the testator, the legacy becomes void and is integrated into the general estate, unless a substitute has been expressly designated in the will.

Frequently Asked Questions (FAQ)

Can an heir be a legatee at the same time?

Yes. This legal concept is called a pre-legacy (prelegado - Article 890 of the Civil Code). It allows a forced heir to receive a specific asset preferentially (as a legatee) and, additionally, participate in the distribution of the rest of the inheritance (as an heir). The advantage is that the heir can renounce the inheritance (due to debts) and yet accept the legacy, or vice versa.

What happens if the bequeathed asset no longer exists in the deceased's estate at the time of death?

If the testator sells or destroys the specific asset they had bequeathed in their will, the legacy becomes void (Article 869 of the CC). The legatee will not be able to require the heirs to buy them a similar asset or claim financial compensation, unless the will specifies that it is a "legacy of a generic thing" (legado de cosa genérica).

Who pays the costs of delivering the bequeathed asset?

As a general rule, the expenses necessary for the delivery of the legacy (such as notary fees, registry fees, or transport costs for movable assets) are borne by the estate (meaning they are paid by the heirs), unless the testator has expressly provided otherwise in their will.

Can the legatee reject the legacy?

Yes, receiving a legacy is voluntary. The legatee can renounce the legacy freely and voluntarily. In this case, the bequeathed asset becomes part of the common estate and will be distributed among the heirs according to the general rules of the will or the law.

Can a legacy be made if there is no will?

No, under no circumstances. Intestate succession (without a will) regulated by the Civil Code only designates universal heirs by order of kinship. A legacy is an express manifestation of the deceased's wishes, meaning it strictly requires the existence of a valid will.

In summary

• An heir is a universal successor: They acquire both the assets and the debts of the deceased globally.
• A legatee is a particular successor: They receive a specific asset or right and are not liable for the debts of the deceased.
• A will is mandatory for a legacy: The concept of a legatee does not exist in inheritances without a will (ab intestato).
• *The legítima is untouchable:* No legacy can reduce the portion of the inheritance reserved by law for forced heirs.
• Delivery is not automatic: The legatee must formally request the delivery of the asset from the heir or executor to take possession of it.
• Strict tax deadline: Both have a period of 6 months to settle the corresponding taxes after the death.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.