Your father gave everything away in life: reducing that gift
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Bring the action to reduce excessive lifetime gifts. Article 636 of the Código Civil prevents anyone giving away more than they could leave by will, and article 654 requires the excess to be cut back, computing the net value of the donor's assets at the time of his death. You sue before the sección civil del Tribunal de Instancia and the prudent period is five years.
Your father died last year and eight thousand euros were left in the bank. The village house and the city flat were no longer in his name: he had given them to your brother in two deeds, one nine years ago and one three years ago. You are shown the will, which divides everything equally, and are told you get half of those eight thousand euros. Your brother argues that the gifts were your father's wish and that you were even at the notary's office on the second occasion.
The case, in five lines
- What is brought
- Action to reduce excessive lifetime gifts under articles 654 and following of the Código Civil, normally joined to the action to compute the estate and, where appropriate, to collation between forced heirs.
- Before which court
- The sección civil del Tribunal de Instancia (the civil section of the first-instance court) of the deceased's last domicile, through ordinary proceedings when the value of the gifts sets that amount.
- Deadline
- The Código sets no specific period. The working criterion is the five years of article 1964.2 for personal claims with no special period, counted from the opening of the succession, which is when performance can be demanded.
- Who can bring it
- Under article 655, only those entitled to a legítima or to an aliquot share of the estate, and their heirs or successors, may seek the reduction. Donees, legatees who are not of an aliquot share and the deceased's creditors are excluded.
- Financial risk
- The case requires a valuation report paid up front by whoever proposes it, and if no reduction is achieved costs may be awarded against you. The donee keeps the income received during the donor's lifetime under article 654.
Nobody may give away more than they could leave by will
Article 636 of the Código Civil states it in a sentence that settles half the case: nobody may give or receive by way of gift more than they can give or receive by will, and the gift is excessive in everything beyond that measure. A lifetime gift is therefore not a free space where the father could do as he pleased: it is subject to the same limit as his will.
Article 654 turns that limit into a claim. Gifts that are excessive, computing the net value of the donor's assets at the time of his death, must be cut back as to the excess, and that reduction does not prevent them having taken effect during the donor's life nor the donee having kept the income. To carry it out, the article refers to the rules in articles 820 and 821.
The legítima is not calculated on what was left, but on what there was
Here lies the mistake that makes many people believe they have no case. Article 818 requires that, in order to fix the legítima, regard be had to the value of the assets remaining at the testator's death, less debts and charges, not counting among them those imposed in the will, and it adds that the value of collationable gifts shall be added to the net value of the estate. The calculation starts from a reconstructed estate, not from the bank balance.
Article 819 then says to which part each gift is imputed: gifts to children that do not count as mejoras are imputed to their legítima, gifts to strangers are imputed to the free part the testator could have disposed of, and in so far as they are excessive or exceed the disposable share they are cut back under the rules in the following articles. Without that imputation there is no way of knowing whether there is an excess or how large it is.
Nor is the value used the one in the deed. Article 1045 provides that the very things given are not brought into collation and division, but their value at the time the hereditary assets are valued, and that any physical increase or deterioration after the gift, and even its total loss, whether accidental or culpable, is at the donee's cost and risk or benefit. That rule usually multiplies the figure in dispute.
Having been at the notary's office did not make you waive anything
This is the defence that always appears and the one that holds up worst. Article 655 provides that only those entitled to a legítima or to an aliquot share of the estate, and their heirs or successors, may seek the reduction, and adds in its second paragraph that those persons may not waive their right during the donor's lifetime, either by express declaration or by consenting to the gift.
In other words, the fact that you attended the signing, that you said you were happy with it or that you signed a document accepting it does not count as a waiver, because the law expressly forbids waiving before the donor's death. The same article closes the circle from the other side: donees, legatees who are not of an aliquot share and the deceased's creditors may neither seek the reduction nor benefit from it.
If there are several gifts, reduction starts with the most recent
Article 656 sets the order with a simple rule: if, where there are two or more gifts, they do not all fit within the disposable part, the most recent ones are suppressed or cut back as to the excess. An older gift therefore stands on firmer ground than a newer one, and that fact changes the strategy when the deceased distributed his assets in several deeds over the years.
Where there are two gifts to the same brother, the one made three years ago is attacked before the one made nine years ago. Where the donees are different people, the order decides who is sued first and how far each reduction reaches, which makes it essential to establish the dates of the deeds precisely before drafting the relief sought, not afterwards.
Collation and reduction are not the same and are not claimed alike
Collation operates between forced heirs who take part in the estate. Article 1035 requires anyone who received assets from the deceased in life by dowry, gift or other gratuitous title to bring those assets or values into the estate, so they can be counted in setting the legítimas and in the division account. It gives nothing back to anyone: it rearranges the division so that whoever already received does not receive twice.
Reduction goes further because it attacks the gift itself when it invades the legítima. That is why the exceptions have to be read before claiming. Article 1036 excludes collation if the donor expressly so provided or if the donee repudiates the estate, except where the gift must be cut back as excessive, which is precisely the ground that supports the claim when the father said he dispensed with collation.
The Código also leaves out certain outlays. Article 1041 excludes expenses for maintenance, education, treatment of illness even where extraordinary, apprenticeship and customary gifts, as well as those made to meet special needs arising from a disability. Article 1044 saves wedding gifts except in so far as they exceed one tenth or more of the amount disposable by will.
The period is not written down, which is why the shortest is assumed
The Código Civil sets no period of its own for the reduction claim, and the Audiencias have not followed a single criterion. The majority reference is article 1964.2, which provides that personal claims with no special period lapse after five years from when performance may be demanded, counting that moment from the opening of the succession, which is when a gift can be declared excessive.
Working to the shorter reading is the only prudent way to run the case: if it is right, you are in time, and if the court's criterion turns out to be more generous, nothing has been lost. Betting on the longer period and getting it wrong, by contrast, means losing an entire legítima without ever arguing the merits, which is the worst way to lose a case of this kind.
How we run the case, step by step
- 1
Reconstruct everything that left the estate during the donor's life
We request land registry extracts with the ownership history of each property, we trace the deeds of gift and their dates, and we review the bank movements of the last few years looking for transfers with no apparent cause.
- 2
Compute the estate under article 818
We start from the value of the assets existing at death, deduct debts and charges without counting those imposed in the will, and add the value of the collationable gifts. That total gives the base against which the legítima is measured.
- 3
Value the gifted assets at the time the law requires
A valuation report is commissioned under article 1045, which requires not the thing given but its value at the time the hereditary assets are valued. The difference from the deed value is usually the economic key to the case.
- 4
Formally demand from the donee with the calculation done
He is told the computation, the imputation of each gift and the resulting excess, with a proposed division correcting it. Many cases close here when the donee sees that article 655 stops him relying on your earlier consent.
- 5
Sue for reduction and, where appropriate, for collation
The claim is filed before the sección civil del Tribunal de Instancia, seeks a declaration that the gifts are excessive and the cutting back of the excess starting with the most recent one under article 656, and joins the division of the corrected estate.
- 6
Enforce the reduction against assets or against their value
Once the judgment is final, the outcome is put into effect by awarding assets or compensating in cash. If the donee has sold what he received, the argument shifts to the value calculated under article 1045 and to his own assets.
The evidence that decides the case
- The deeds of gift, with their exact dates, which determine the order of reduction under article 656.
- The land registry extracts with the complete ownership history of each property.
- The expert valuation report on the gifted assets, referred to the moment the hereditary assets are valued.
- The deceased's bank statements, which reveal transfers and disposals not documented in any deed.
- The gift tax return filed at the time, which establishes the declared value and the date.
- The death certificate and the will, which fix the moment of computation and the shares in the division.
What closes the door
- Believing that, by attending the notary's office or giving your agreement, you already waived the right. Article 655 forbids waiving the reduction during the donor's lifetime, even by consenting to the gift.
- Calculating the legítima on the balance left in the bank. Article 818 requires the value of collationable gifts to be added before any share is fixed.
- Demanding the property back instead of its value. Article 1045 requires the value at the time the hereditary assets are valued to be brought in, not the thing itself.
- Confusing a dispensation from collation with immunity for the gift. Article 1036 expressly preserves the case where the gift must be cut back as excessive.
- Letting years go by trusting a long period that the lower case law does not share, when the majority reference is the five years of article 1964.2.
The law that applies
- Art. 636 CC. Nobody may give or receive by gift more than they can give or receive by will, and the gift is excessive in everything beyond that measure. BOE-A-1889-4763
- Art. 654 CC. Excessive gifts, computing the net value of the donor's assets at the time of his death, are cut back as to the excess, without preventing them from having taken effect during his life or the donee from keeping the income. It refers to articles 820 and 821. BOE-A-1889-4763
- Art. 655 CC. Only forced heirs, holders of an aliquot share and their heirs may seek the reduction. No waiver is possible during the donor's lifetime, whether express or by consenting to the gift, and donees, non-aliquot legatees and creditors are excluded. BOE-A-1889-4763
- Art. 818 CC. To fix the legítima, regard is had to the value of the assets remaining at the testator's death, less debts and charges not counting those imposed in the will, and the value of collationable gifts is added to that net value. BOE-A-1889-4763
- Art. 1045 CC. The things given are not brought into collation and division, but their value at the time the hereditary assets are valued, and any later increase, deterioration or even loss is at the donee's cost and risk or benefit. BOE-A-1889-4763
- Art. 1964.2 CC. Personal claims with no special period lapse after five years from when performance may be demanded, and in continuing obligations the period starts with each breach. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
I signed as a witness to the gift. Can I still claim?
Yes. Article 655 expressly forbids anyone entitled to a legítima from waiving the reduction during the donor's lifetime, either by express declaration or by consenting to the gift. Your presence at the notary's office, your signature or any document in which you said you agreed produce no waiver, because the law denies effect to that advance waiver.
The gift was made fifteen years ago. Does it still count?
Age does not make it immune. Article 818 requires the value of collationable gifts to be added to the net value of the hereditary assets, without distinguishing by date. What the date does fix is the order of reduction: article 656 provides that, if they do not all fit within the disposable part, the most recent ones are cut back first, so an old gift is attacked last.
My brother has already sold the flat he was given. Is that the end of it?
No. Article 1045 provides that what is brought in is not the thing given but its value at the time the hereditary assets are valued, and that any later increase, deterioration and even total loss is at the donee's cost and risk or benefit. That he has sold changes how the judgment is enforced, not the right to cut back the excess nor the figure in dispute.
My father said in the deed that the gift was free from collation. Does that hold?
It holds for collation, not for excessiveness. Article 1036 allows the donor to exclude collation between forced heirs, but expressly preserves the case where the gift must be cut back as excessive. Put another way, your father could decide that what was given would not be deducted from your brother's share, but he could not authorise him to keep your legítima.
Which expenses my father incurred do not count as a gift?
Article 1041 leaves out of collation expenses for maintenance, education, treatment of illness even where extraordinary, apprenticeship and customary gifts, and also those made to meet special needs arising from a disability. Article 1042 deals separately with expenses for a professional or artistic career, and article 1044 saves wedding gifts except in so far as they exceed one tenth of the disposable amount.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.