Lifetime gifts and inheritance: the Supreme Court clarifies how they affect the forced share

Updated on 27 September 2026. The Civil Code rules on forced shares and gifts have not changed, and STS 457/2025 is still the leading judgment. We have corrected how we described the case (the Provincial Court ruled on appeal) and the size of the forced share, and added how the calculation works, how and within what time limit to claim after the 2025 procedural reform and the tax rules currently in force in Madrid.

One of the most common questions about inheritance is whether you can share out your assets during your lifetime among some of your children or grandchildren and leave others out without any consequences. The short answer: you can favour some more than others, but only up to the limit of the forced share (legítima). Where there are forced heirs, what you give away during your lifetime does not disappear: when you die, it is added to what you leave to check whether that limit has been respected.

The Civil Chamber (Sala de lo Civil) of the Supreme Court (Tribunal Supremo) restated this in judgment 457/2025 of 24 March (appeal 6808/2019, ECLI:ES:TS:2025:1226). The judgment does not create new case law, but it sets out the existing rule clearly: gifts made before death count when calculating the forced share, even if the donor wanted to leave them out.

The case: farmland given away with a waiver of collation

In 2011 a woman gave several rural plots, by public deed, to some of her children and grandchildren. The deed stated that the gifts were made as an express betterment (mejora), charged to the betterment third and the freely disposable third, and with a waiver of collation (dispensa de colación). She died in 2017. One of her grandsons, who inherited in place of his late father, had received nothing. In the court-supervised division of the estate (división judicial de la herencia) he asked for the value of those plots to be included in the inventory so that his forced share could be calculated.

• The Court of First Instance no. 1 of Casas-Ibáñez (Juzgado de Primera Instancia) included in the inventory the value of the donated plots, to the extent they had gone to forced heirs.
• On appeal, the Provincial Court of Albacete (Audiencia Provincial) excluded them. It held that, having been made as a betterment and with a waiver of collation, they should not be taken into account, and added that the donor had left other assets and that there was no proof that the gifts harmed the grandson's strict forced share or that she had meant to empty her estate to harm him.
• The Supreme Court upheld the grandson's cassation appeal and ordered the value of the plots given away in 2011 to be included in the inventory for the purpose of fixing the forced share.

The Supreme Court's message is that the deceased's wishes have limits, and one of them is the forced share. A waiver of collation affects how the estate is divided among the heirs, but it does not prevent the gift from being added back to check whether the forced share has been respected. And without first adding it back, there is no way to know whether the forced share has been harmed.

Who is entitled to a forced share and how much

The forced heirs (herederos forzosos or legitimarios) are listed in article 807 of the Civil Code (Código Civil), and their share depends on who they are:

So the strict forced share "third" only exists when children or descendants inherit. If a child has died first, their descendants take their place by right of representation (derecho de representación, arts. 924 and 925 of the Civil Code), like the grandson in this case.

All of this is common Spanish civil law. If the deceased had Catalan, Aragonese, Navarrese, Basque, Galician or Balearic civil status (vecindad civil), forced shares and the way gifts are counted follow their own rules. In Catalonia, for example, the forced share is one quarter and, as a general rule, only gifts made in the ten years before death are added back (art. 451-5 of the Civil Code of Catalonia).

How the calculation works: four separate steps

1. Value what is left at death: the deceased's assets and rights, less debts and charges (art. 818 of the Civil Code).
2. Add back all lifetime gifts, to children, grandchildren or third parties, old or recent, with or without a waiver of collation. This is computation (computación), and the donor cannot avoid it. The forced share and the thirds are calculated on that total.
3. Charge each gift (imputación). A gift to a child counts against their forced share, unless the donor expressly states that it is a betterment (arts. 819 and 825). A gift to someone who is not a forced heir (for example, a grandchild whose parent is alive) goes to the freely disposable third, unless it is expressly made as a betterment.
4. Reduce any excess. Nobody can give away more than they could leave by will: the excess is an inofficious gift (donación inoficiosa) (art. 636). First, what the will leaves to the heirs is cut back (forced-share top-up, complemento de legítima, art. 815), then legacies (art. 820) and, if that is not enough, gifts, starting with the most recent (art. 656). The recipient keeps the income the asset produced during the donor's lifetime (art. 654).

A simple example

A widowed mother of three gave her daughter Ana, some years ago, a flat now worth €240,000, as a betterment and with a waiver of collation. At her death she leaves €60,000 in the bank, no debts, and names her other two children as heirs. Figures are rounded; the flat is valued as at the date the estate is valued.

• If the gift were left out, as the Provincial Court did with the 2011 plots, the strict forced share would be €20,000 in total (about €6,667 per child), and the other two, with €30,000 each, would have nothing to claim.
• With computation, the base is €60,000 + €240,000 = €300,000. The strict forced share is €100,000 (€33,333 per child), and the betterment and freely disposable thirds add up to €200,000.
• Ana can receive at most that €200,000 plus her own strict forced share: €233,333. The gift exceeds that limit by about €6,667, exactly what her siblings are short (€3,333 each), and it is reduced to that extent. The waiver of collation does not change this calculation.

Collation and waivers: what the donor can decide

Collation (colación) is a step in the division of the estate. A forced heir who inherits together with other forced heirs brings into the partition account the value of what they received during the deceased's lifetime, and it is deducted from their share (art. 1035). It aims at equality among co-heirs, and here the donor has some room:

• The donor can expressly waive it, usually in the deed of gift or in the will (art. 1036). There is also no collation if the recipient renounces the inheritance. Neither the waiver nor the renunciation prevents the gift from being reduced if it is inofficious.
• The gift is valued at the time the estate assets are valued, not at what it was worth when given. Physical changes after the gift (improvements, deterioration or even its total loss) are at the recipient's risk or benefit (art. 1045).
• Expenses for maintenance, education, illness or training, customary presents and the costs of meeting the special needs of a child with a disability are not brought into collation (art. 1041).
• The betterment status can be revoked even if the assets have already been handed over, unless it was made in a marriage settlement (capitulaciones matrimoniales) or by a contract for value with a third party (art. 827).

What counts as a gift

Not only gifts of real property (which must be made by public deed, art. 633) count, but also money transfers, handing over shares or forgiving a debt. Watch out for help that does not look like a gift: what you pay to clear a child's debts, without asking for it back, is brought into collation (art. 1043). And a "sale" to a child for a price that was never paid may hide a gift. In these cases, everything depends on the evidence.

But not all help counts. In STS 13/2025 of 7 January, the Supreme Court did count, for the forced share, the money a mother paid to clear her son's debts. However, it refused to add the rental value of a home she had lent him rent-free on sufferance (precario), or the property tax (IBI) and community charges she did not pass on to him, because letting someone use a property does not make the owner any poorer. It also restated that what the law excludes from collation, such as maintenance or education expenses (art. 1041), is not added back for the forced share either.

Common mistakes when making lifetime gifts

1. Thinking that gifts made years ago no longer count. Under common civil law, age does not take a gift out of the calculation.
2. Relying blindly on the waiver of collation, which offers no protection against the forced share.
3. Getting the other children to sign their agreement. They cannot waive, during the donor's lifetime, the right to seek reduction, not even by consenting to the gift (art. 655), and any waiver of, or settlement over, a future forced share is void (art. 816).
4. Not making it clear whether the gift is a betterment or an advance on the forced share. Unless it is stated expressly, there is no betterment (art. 825), and the ambiguity sets heirs against each other.
5. Giving everything away. The donor must keep enough to live on (art. 634).
6. Ignoring tax, which depends on the autonomous community (comunidad autónoma).

What does work is planning within the limits of the law: using the betterment and freely disposable thirds deliberately, recording in writing what each gift is and coordinating it with the will. Disinheritance is only possible on the grounds set by law (we explain it here).

If you think a gift has harmed your forced share

1. Gather the paperwork: the will (found through the certificate of last wills, certificado de últimas voluntades), deeds of gift, Land Registry (Registro de la Propiedad) extracts and bank statements.
2. Ask for the gifts to be included in the inventory and in the partition account, whether in the heirs' agreement, before a notary or before the executor-partitioner (contador-partidor).
3. Try to reach an agreement before suing. Since 3 April 2025, most civil claims require a prior attempt at an adequate dispute-resolution method (medio adecuado de solución de controversias), for example direct negotiation between the parties or between their lawyers, mediation, conciliation, the opinion of an independent expert or a confidential binding offer, under article 5 of Organic Law 1/2025 (Ley Orgánica 1/2025). This applies to the court-supervised division of an estate and to claims for a forced-share top-up or the reduction of gifts, but not to voluntary-jurisdiction applications, such as asking for a court- or notary-appointed executor-partitioner.
4. If there is no agreement, go to court: through the court-supervised division of the estate (arts. 782 et seq. of the Civil Procedure Act, Ley de Enjuiciamiento Civil), as in the Supreme Court case, or through a claim for a forced-share top-up (art. 815 of the Civil Code) and for the reduction of inofficious gifts (arts. 654 to 656).

Reduction can be sought by forced heirs, by those entitled to a fractional share of the estate and by their heirs, but not by the deceased's creditors or by the recipients of the gifts (art. 655).

Time limit: five years from the date of death

The Civil Code sets no time limit. The Supreme Court applies five years to claims to reduce inofficious gifts and legacies (STS 1548/2023 of 8 November), and in STS 533/2026 of 9 April it restated that this is a time bar (caducidad), that it runs from the date of death and that it also governs claims for a forced-share top-up. In that case it applied the period to a clause in a will that burdened the forced share and held that a claim filed five years and almost two months after the death was out of time.

Because it is a time bar rather than a limitation period, a formal demand letter (burofax) or any other out-of-court claim does not stop the clock. What does suspend it is a formal request to negotiate through one of these methods (MASC) that sets out clearly what you are claiming, from the date of the attempt to notify it to the other side (art. 7.1 of Organic Law 1/2025). The clock starts running again, however, if the first meeting does not take place or there is no written reply within 30 calendar days, or when the negotiation ends without agreement. And for the attempt to count as the required pre-action step, the claim must be filed within one year of the other side receiving the request and not replying, or of the negotiation ending without agreement (art. 7.3). That year is a procedural requirement and does not extend the five years. Do not leave it to the last minute.

Tax: a gift has its own bill

The forced share is calculated at death, but tax is paid when the gift is made. It is worth looking at it before signing:

• The recipient pays Inheritance and Gift Tax (Impuesto sobre Sucesiones y Donaciones, art. 5 of Law 29/1987). For residents in Spain, real property is taxed under the rules of the region where it is located, and money and other assets under the rules of the recipient's region of habitual residence: the region where they spent the most days in the previous five years (arts. 28 and 32 of Law 22/2009).
• In the Community of Madrid, descendants, ascendants and spouses (or registered civil partners, parejas de hecho) get a 99% tax credit (bonificación). Siblings, uncles and aunts, nephews and nieces and relatives by marriage in the direct line (parents-in-law, sons- and daughters-in-law, stepchildren and step-parents) get 50% since 1 July 2025.
• To apply these credits you must file a return for the gift (the deadline is 30 working days; filing late only works if the tax authority has not already sent you a formal request), justify in the document where any money given came from, and use a public document above €10,000 (adding up gifts from the same donor over three years).
• If everything received from the same donor over the last three years does not exceed €1,000, the tax credit is 100% and no return is needed, except for assets that must be entered in a public register.
• The donor may pay Personal Income Tax (IRPF) on the capital gain if the asset is worth more than when they acquired it; if it is worth less, the loss is not taken into account (art. 33.5.c of the Personal Income Tax Act).
• For urban property, the municipal capital gains tax (plusvalía municipal) is paid by the recipient (art. 106 of the Local Finance Act, Ley reguladora de las Haciendas Locales).

You will find more detail in our article on gifts, donations and their tax treatment.

Frequently asked questions

Can I give a flat to just one of my children? Yes, as long as, once everything is added up at your death, the others receive at least their forced share. If not, they can ask for the gift to be reduced by the excess.

What if the child who received the gift renounces the inheritance? In STS 1705/2024 of 18 December, two sons renounced the inheritance, giving up all their rights in it, forced share included, and the gifts they had received were not betterments. The Supreme Court upheld the ruling that those gifts were charged to the freely disposable third and reduced to the extent they exceeded it. It did point out that, had they been made as betterments, they could have been charged to the betterment third despite the renunciation. Renouncing does not guarantee keeping everything that was given.

Does the maintenance or education I paid for my child count? Maintenance and education expenses are not brought into collation (art. 1041) or added back for the forced share. The cost of a professional or artistic career is only brought into collation if you so provide or if it harms the forced share (art. 1042); paying off their debts is (art. 1043). Other extraordinary help, such as the deposit on a flat, can also be taken into account.

Plan before you give

Making lifetime gifts without analysing their legal and tax effects can produce exactly the opposite of what you wanted: disputes, claims and family rifts. Where there are forced heirs, the law acts as a safety net, and no gift, however early or well-intentioned, can get around it.

If you are thinking of making a gift or believe a gift has harmed your forced share, we can review the deeds and run the numbers with you. You can book a consultation; the first 10-minute phone orientation is free. If you have just lost a family member, our guide Inheritance: first steps may also help.

Legislation and sources

• Civil Code, consolidated text (arts. 633-656, 807-838 and 1035-1045)
• STS 457/2025 of 24 March (ECLI:ES:TS:2025:1226), on CENDOJ
• STS 1705/2024 of 18 December (ECLI:ES:TS:2024:6151), on CENDOJ
• STS 533/2026 of 9 April (appeal 3568/2021, ECLI:ES:TS:2026:1566), in the official summary of First Chamber judgments
• Organic Law 1/2025 on measures for the efficiency of the Public Justice Service, arts. 5 and 7
• Law 29/1987 on Inheritance and Gift Tax
• Law 22/2009 on the financing of the autonomous communities, arts. 28 and 32
• Legislative Decree 1/2010 of the Community of Madrid, arts. 25 and 26 (Inheritance and Gift Tax credits and civil partners)
• Law 35/2006 on Personal Income Tax, art. 33
• Civil Code of Catalonia, book IV, art. 451-5