Forced Heirship in Spain vs. Denmark: The Key Differences You Need to Know
Imagine this scenario: A Danish couple buys a holiday home in Spain. They believe that when one dies, the other will automatically inherit the entire property—just as they would expect in Denmark. But in Spain, the rules are fundamentally different. Without the right will, the children could suddenly own 2/3 of the property, while the surviving spouse only has usufruct (right of use). This can lead to enormous conflicts and financial problems.
The difference between Danish and Spanish inheritance law is significant, especially when it comes to forced heirship and the spouse's position. In this guide, we review the most important differences, provide concrete examples, and explain how you can use choice of law to protect your family's future.
Why Inheritance Law Matters to You
Many Danes with property in Spain mistakenly believe that Danish inheritance law automatically applies just because they are Danish citizens. This is not the case.
| Principle | Explanation | |-----------|-------------| | Default Rule | The law of your country of residence applies to inheritance | | If Resident in Spain | Spanish inheritance law applies at death | | Scope | Applies to your ENTIRE estate—including assets in Denmark |
💡 Important Exception: As a Danish citizen, you can choose Danish inheritance law, even if you live in Spain. This choice must be clearly stated in your will.
Let's first look at how the two systems actually differ.
Forced Heirship in Denmark - Overview
The Danish inheritance system is built on a balance between protection of immediate family and freedom of testation.
Who Are Forced Heirs in Denmark?
In Denmark, there are two categories of forced heirs:
1. Descendants (children and their descendants):
- Entitled to at least 25% of the estate collectively
- If you have 2 children, they each get minimum 12.5%
- Cannot be completely disinherited
2. Spouse:
- Entitled to at least 25% of the estate
- Often inherits more via will
- Special rules about undivided estate (uskiftet bo)
Free Testamentary Disposition: 50%
The Danish system gives you 50% free disposition over your estate. This portion you can freely dispose of in your will—to whomever you wish.
Typical distribution in Denmark:
| Portion | Percentage | |---------|------------| | Spouse's forced share | 25% | | Children's forced share | 25% | | Free testamentary disposition | 50% (typically to spouse) |
The Spouse's Position in Denmark
Danish inheritance law is very generous toward the spouse:
Without a will (intestate succession):
- ✅ Spouse inherits the entire estate if there are common children
- ✅ Spouse inherits at least half if there are children from previous relationships
With a will:
- ✅ You can bequeath your entire free disposition (50%) to your spouse
- ✅ Combined, the spouse can receive 75% of the estate (25% forced share + 50% will)
- ✅ With special arrangements, the spouse can actually have use of the entire estate
Undivided estate (Uskiftet bo): The surviving spouse can in many cases remain in undivided possession of the estate, meaning:
- Spouse retains the entire estate
- Children's inheritance is deferred until the spouse's death
- Usually requires children's consent (or fulfillment of certain conditions)
Conclusion: In Denmark, the spouse is well protected, and it is relatively easy to ensure the spouse receives the majority or full use of the estate.
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Forced Heirship in Spain - Overview
The Spanish inheritance system is significantly more restrictive and favors children over the spouse.
Legítima - The Spanish Forced Heirship System
In Spain, forced heirship is called legítima, and the system divides the estate into three parts:
| Portion | Percentage | Description | |---------|------------|-------------| | Legítima estricta (strict forced share) | 33.3% | Must be divided equally among children | | Mejora (improvement) | 33.3% | Can be given to one or more children (but not others) | | Libre disposición (free disposition) | 33.3% | Can be given to anyone |
⚠️ Important: Combined, 2/3 of the estate is reserved for children. Only 1/3 can be freely disposed of.
Who Are Forced Heirs in Spain?
The system works hierarchically:
| Priority | Heirs | Entitlement | |----------|-------|-------------| | 1st | Descendants (children, grandchildren) | 2/3 of the estate | | 2nd | Ascendants (parents, grandparents) | 1/3 or 1/2 (only if no descendants) | | 3rd | Spouse | NO forced share—only usufruct (right of use) |
The Spouse's Position in Spain - The Big Surprise
This is where many Danes get a shock: The spouse is NOT a forced heir in Spain!
Instead, the spouse has the right to usufructo (usufruct):
If the deceased has children:
- Spouse receives usufruct of 1/3 of the estate (the mejora portion)
- Children own the 2/3 (legítima + mejora)
- Children receive full ownership of their share
If the deceased has no children or parents:
- Spouse inherits the entire estate (full ownership)
What Does Usufruct Mean?
| Rights | Status | |--------|--------| | Right to use the property (live in the house) | ✅ Yes | | Right to income from the property (rent) | ✅ Yes | | Right to sell the property | ❌ No | | Right to mortgage the property | ❌ No | | Full ownership | ❌ No |
The children have "bare ownership" (nuda propiedad):
- They legally own the property
- But cannot use it or receive income while the spouse lives
- When the spouse dies, they automatically receive full ownership
⚠️ The Problem: The spouse cannot sell the house without the children's consent. If the relationship with the children is poor (stepchildren, conflict), the spouse can be stuck.
Regional Differences in Spain
Spain has different inheritance systems in different regions:
| Region | Key Characteristics | |--------|---------------------| | Castilla (general Spanish law) | As described above; applies in most of Spain incl. Andalusia, Valencia, Murcia | | Catalonia | Children only entitled to 25%; greater testamentary freedom; spouse has stronger position | | Balearic Islands | Varies between islands; Mallorca similar to Catalonia; Ibiza/Formentera has own traditions | | Basque Country & Navarra | Almost full testamentary freedom; children can be disinherited with symbolic payment |
Note: When we refer to "Spanish inheritance law" in this guide, we mean the general Spanish inheritance law (Castilla), which applies in most popular areas for Danish property buyers.
Comparison: Denmark vs. Spain
Let's compare the two systems side by side:
| Aspect | Denmark | Spain (general) | |--------|---------|-----------------| | Children's forced share | 25% combined | 66.7% combined (2/3) | | Spouse's forced share | 25% | 0% (only usufruct of 1/3) | | Free testamentary disposition | 50% | 33.3% (1/3) | | Can spouse inherit everything? | Yes (via will + undivided estate) | Only if no children/parents | | Spouse can sell inherited property? | Yes | Only with children's consent | | Protection of spouse | Strong | Weak | | Protection of children | Moderate | Very strong | | Testamentary freedom | High (50%) | Low (33%) |
Conclusion: The Spanish system protects children far more, while the Danish system protects the spouse better and provides greater freedom to dispose of assets.
Practical Example: What Does It Mean in Practice?
Let's look at a concrete example that shows the difference:
The Scenario
Family:
- Hans and Kirsten, Danish couple
- Married for 35 years
- 2 adult children (common children)
- Own holiday home in Spain worth €270,000
- Hans dies
Financial situation:
- Kirsten wants to continue living in the house
- Children live in Denmark and have their own homes
- No conflict in the family
Scenario A: Danish Law Applies (without will)
| Distribution | Percentage | Amount | |--------------|------------|--------| | Kirsten inherits | 100% | €270,000 | | Children inherit now | 0% | €0 |
Kirsten's situation:
- ✅ Full ownership of the house
- ✅ Can live there, rent it out, sell—completely freely
- ✅ Financial security
Scenario B: Spanish Law Applies (without will or law choice)
| Distribution | Type | Amount | |--------------|------|--------| | Children receive | Bare ownership of 2/3 | €180,000 | | Kirsten receives | Usufruct of 1/3 | €90,000 |
Kirsten's situation:
- ✅ Can continue living in the house (usufruct)
- ❌ CANNOT sell the house without children's consent
- ❌ If she later wants to sell to move to a care home, children must approve
- ❌ Children can theoretically demand "redemption" of usufruct (capitalization)
Children's situation:
- Own 2/3 of the house legally
- Must pay inheritance tax on their inheritance (can be significant in some regions)
- Cannot use the house or receive income while mother lives
- When mother dies, they automatically receive full ownership
Potential problems:
- If Kirsten needs money (health expenses, care home), she cannot mortgage the house
- If children get into financial trouble, their creditors can claim their share
- If a child dies, their children/spouse inherit—suddenly Kirsten has more "co-owners"
Scenario C: Spanish Residence, But With Danish Law Choice
With correct will with Danish law choice:
- Hans can bequeath his free disposition (50%) to Kirsten
- Kirsten receives total 75% (25% forced share + 50% will)
- Children receive their forced share (25% combined = 12.5% each)
Even better: With an undivided estate-like arrangement, Kirsten can have full use of the entire estate, even though children legally have a claim to their forced share.
Conclusion: Danish law choice provides far better protection of the spouse.
Choice of Law - Your Opportunity for Control
Perhaps the most important information in this guide is this: You can choose Danish inheritance law, even if you own property in Spain or live there.
The EU Succession Regulation
On August 17, 2015, the EU Succession Regulation (Regulation 650/2012) came into force. Denmark stands outside the regulation, but Spain participates.
| Principle | Explanation | |-----------|-------------| | Residence Principle | The inheritance law of residence country applies by default | | Law Choice Access | You can choose your nationality country's law | | Testamentary Choice | The choice must appear in your will |
For Danes this means:
- If you live in Spain, Spanish inheritance law applies by default
- BUT you can choose Danish inheritance law by stating it in your will
- This choice applies to your entire estate—both assets in Spain and Denmark
How to Choose Danish Law?
The law choice must appear clearly and unambiguously in your will. It is not enough to make a Danish will—you must explicitly state the law choice.
Example wording:
"I, [Name], born [date], choose pursuant to Article 22 of the EU Succession Regulation (650/2012) that Danish law shall apply to my entire inheritance. This law choice covers all my assets, regardless of where they are located, including real property situated in Spain."
⚠️ IMPORTANT: The wording must be legally correct. Always use a lawyer with expertise in both Danish and Spanish inheritance law.
Should You Make Both Danish and Spanish Wills?
Yes, it is strongly recommended to make both:
| Will | Purpose | |------|---------| | Danish Will | Covers your assets in Denmark; contains choice of Danish law; can reference the Spanish will | | Spanish Will | Covers your property in Spain; contains same choice of Danish law; makes probate faster and cheaper; avoids translation and apostille of Danish will |
Coordination is crucial: The two wills must be coordinated so they don't revoke each other. Typically the Spanish will is formulated thus:
"This will covers exclusively my real property in Spain and does not revoke other wills regarding assets elsewhere."
Does Law Choice Always Work?
The law choice to Danish law has some limitations:
| Works For | Does NOT Work For | |-----------|-------------------| | Who inherits what | Inheritance tax (always follows the country where the asset is located) | | Forced heirship rules | Formal requirements for wills in certain situations | | Inheritance calculation | Special national orders (e.g., Spanish reservas familiares in some regions) |
Important About Real Property: Even if you choose Danish inheritance law, probate must still go through Spanish authorities for Spanish property. But the rules for WHO inherits follow Danish law.
The Importance of a Spanish Will
Even if you choose Danish law, a Spanish will is not just useful—it is almost essential.
Advantages of a Spanish Will:
| Advantage | With Spanish Will | Without Spanish Will | |-----------|-------------------|----------------------| | Probate processing time | 3-6 months | 12-24 months | | Extra costs | None | €1,000-3,000 for translation, apostille, extra legal work | | Clarity for heirs | High | Lower |
What Does a Spanish Will Cost?
| Item | Cost | |------|------| | Lawyer fee | €300-600 | | Notary fee | €50-100 | | Total | €350-700 |
This is a one-time expense (unless you later change the will), and the savings at probate will far exceed this investment.
Special Considerations
What If the Children Are Minors?
| In Denmark | In Spain | |------------|----------| | Guardian appointed to look after children's interests | Children inherit their share even as minors | | Spouse can normally remain in undivided estate until children come of age | Parent/guardian administers inheritance but doesn't own it | | Greater flexibility | Special restrictions on sale and mortgaging |
Solution: With Danish law choice, Danish rules apply, providing greater flexibility.
What About Blended Families?
Blended families (stepchildren from previous relationships) require extra careful planning:
The Issue:
- In Spain, stepchildren can demand their full forced share immediately
- The surviving spouse can be in a very weak position
Danish Solution with Law Choice:
- Danish law allows undivided estate also with stepchildren (under certain conditions)
- Greater flexibility to protect surviving spouse
Testamentary Solutions:
- Separate property agreement before marriage
- Coordinated wills
- Precise specifications of who inherits what
Separate Property and Marital Property Regime
Your marital agreement and property regime also affect inheritance:
| Regime | How It Works | |--------|--------------| | Community Property (Danish default) | Everything acquired during marriage is community property; at death: first division of estate, then inheritance; deceased's share (50%) enters the inheritance | | Separate Property | Property covered by separate property is inherited directly; no division of this portion | | Spanish Gananciales | Similar to Danish community property; standard in most parts of Spain |
Important: Your property regime affects WHAT is inherited. Your law choice affects HOW it is inherited and WHO inherits.
When Should You Act?
Answer: As soon as possible!
You should make a will with law choice:
Timing Checklist
| When | Action | |------|--------| | When buying property in Spain | Ideally at the same time as deed signing; many lawyers offer "package solution" with both purchase and will | | Changes in family situation | Divorce or separation; new marriage; new children; children come of age | | When moving to Spain | BEFORE you become resident; ensures you have control of the situation from day one | | At least every 5 years | Review—laws change, your situation changes, ensure your will still fits |
Cost of Waiting
If you die without a will or without correct law choice, it can cost your heirs:
- Many extra months of processing time
- €5,000-15,000 extra in legal costs
- Potentially higher inheritance tax
- Family conflicts and uncertainty
Practical Checklist
Here is your checklist to secure your inheritance matters with Spanish property:
☐ Make Danish Will
- Include choice of Danish law
- Coordinate with spouse
- Specify who inherits what
- Signatures and witnesses according to Danish rules
☐ Make Spanish Will
- At Spanish notary
- Include same choice of Danish law
- Specifically covers the Spanish property
- Ensure it doesn't revoke the Danish will
☐ Register Spanish Will
- Automatically registered when the notary creates it
- Stored in Registro General de Actos de Última Voluntad
☐ Inform the Heirs
- Tell family about the will
- Provide information about where documents are located
- Consider giving copy to children/lawyer
☐ Review Property Regime
- Check your marital agreement
- Consider whether separate property makes sense
- Coordinate with inheritance plan
☐ Plan Inheritance Tax
- Research inheritance tax in your Spanish region
- Consider optimization possibilities
- Ensure there is liquidity to pay the tax
☐ Update Regularly
- Review every 3-5 years
- At major life changes
- When legislation changes
Get Professional Help
Inheritance planning in international situations is complex. Even small errors can have major consequences for your heirs.
What you should NOT do:
- ❌ Use standard templates from the internet
- ❌ Make a will without legal advice
- ❌ Believe a Danish will automatically works in Spain
- ❌ Assume the children "will figure it out"
What you SHOULD do:
- ✅ Use a lawyer with expertise in BOTH Danish and Spanish inheritance law
- ✅ Make coordinated wills in both countries
- ✅ Include correct law choice
- ✅ Review the plan regularly
Frequently Asked Questions
Does Danish or Spanish inheritance law apply to my Spanish property?
By default, the inheritance law of your residence country applies. If you live in Denmark, Danish law applies. If you live in Spain, Spanish law applies. BUT as a Danish citizen, you can always choose Danish inheritance law by stating this in your will.
Can I avoid Spanish forced heirship by choosing Danish law?
Yes, if you choose Danish inheritance law in your will, Danish forced heirship rules apply—also for your Spanish property. This means children are only entitled to 25% (instead of 66%), and your spouse is far better protected.
Do I need to make a new will if I buy property in Spain?
Yes, it is strongly recommended. You should make a Spanish will specifically for the Spanish property, and update your Danish will to include choice of Danish law. The two wills must be coordinated so they don't revoke each other.
What happens if I die without a will with Spanish property?
If you live in Denmark at death, Danish intestacy rules apply. If you live in Spain, Spanish intestacy applies—meaning children get 2/3 and your spouse only usufruct of 1/3. Probate also becomes slower and more expensive without a Spanish will.
Can my spouse inherit our entire Spanish holiday home?
With Danish inheritance law (via law choice): Yes, you can bequeath so the spouse inherits the majority. With Spanish inheritance law: Only if you have no children or parents. If you have children, they get 2/3 of the property, and the spouse only usufruct of 1/3.
What is the difference between usufruct and full ownership?
Usufruct (usufructo) gives the right to use the property and receive income from it, but not to sell or mortgage it. Full ownership (plena propiedad) gives all rights, including sale. In Spanish inheritance, the spouse often receives only usufruct, while children receive ownership.
Does my Danish will work in Spain?
A Danish will works in principle, but must be translated, apostilled, and recognized by Spanish authorities—a process that takes 12-24 months. With a Spanish will, probate takes only 3-6 months. Additionally, your Danish will must contain correct law choice for Danish inheritance law to be applied.
How much does it cost to make a Spanish will?
A Spanish will typically costs €350-700 (lawyer + notary). This is a one-time cost that saves your heirs €5,000-15,000 in extra costs at probate and many months of extra processing time.
Need help with inheritance planning for your Spanish property? Contact me for a consultation.
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