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Cut out of your forced share by a foreign law

Last updated 2026-09-22 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

Yes, there is a case, and the clock is running. The EU Succession Regulation applies the law of the deceased's habitual residence at death, unless he or she validly chose the law of their nationality. You attack that residence or that choice, not public policy: Spanish courts do not treat the forced share as international public policy. The action to set aside the division lasts four years from the day it was made.

My father was a foreign national and had been living in Spain for years, or he was Spanish and moved abroad. He has died, my siblings have divided the estate before a notary under the law of his country, and now they tell me that there is no forced share there and that I am entitled to nothing. The will contains a line saying he wants his succession governed by the law of his nationality. I do not know whether that holds, whether I have anything to claim, or whether I am still in time.

The case, in five lines

What is brought: Action to set aside the estate division for lesion, and where appropriate for nullity, joined with the claim to top up the forced share under article 815 of the Civil Code. It is always preceded by a declaratory claim as to which law governs the succession: habitual residence under article 21, or choice of law under article 22 of Regulation 650/2012.
Before which court: The civil section of the Tribunal de Instancia of the place of the deceased's last domicile in Spain, or of the place where most of the assets are, at the claimant's choice (article 52.1.4 of the Civil Procedure Act), through ordinary proceedings. Spain has international jurisdiction if the deceased was habitually resident here at death (article 4 of the Regulation) and, if resident outside the EU, where there are assets in Spain and he or she was also a Spanish national or had been resident here within the previous five years (article 10).
Deadline: Four years from the day the division was made, to set it aside for lesion of more than one quarter (articles 1074 and 1076 of the Civil Code). The clock starts with the deed of division, not with the death and not with the day you found out. The claim to top up the forced share has no period of its own in the Civil Code, so it is worked on the shortest one, the five years of article 1964.2 from the moment it could be claimed. If the governing law is foreign, that law fixes the period: under the law of England and Wales it is six months from the date the grant of representation is taken out. A prior negotiation request, with its subject matter properly defined, interrupts prescription and suspends lapse from the attempted communication (article 7 of Organic Act 1/2025).
Who can bring it: The forced heir who was passed over or short-changed, where Spanish law applies: children and descendants, failing them parents and ascendants, and the surviving spouse in the form and measure set by the Civil Code (article 807). If a foreign law governs, standing belongs to whoever that law recognises as entitled to claim against the estate or the heirs, because article 23.2(h) of the Regulation places those claims inside the law of the succession. The heirs of a forced heir who has since died may also bring it.
Financial risk: You are litigating against your own family, and ordinary proceedings of this kind rarely take less than a year at first instance. If you lose, the rule is that you pay the other side's costs (article 394.1 of the Civil Procedure Act), although the court may decline to impose them where it finds and reasons serious doubts of fact or law, which happens fairly often in international succession cases. Refusing without cause to take part in the prior negotiation carries its own costs consequence, even for the winner. If you win, the division is redone and the inheritance tax already settled has to be revisited, which may mean a supplementary assessment or a refund.

Which law decides whether you have a forced share

The forced share does not travel with your nationality, nor with the place where the assets sit. Since 17 August 2015, every succession with a cross-border element is governed by EU Regulation 650/2012, and its rule is a single one: the whole succession, movables and immovables, inside and outside Spain, is governed by the law of the State in which the deceased had his or her habitual residence at the time of death (article 21(1)).

That law applies even where it is not the law of a Member State (article 20). If the deceased was habitually resident in London, Miami or Casablanca, the Spanish notary and the Tribunal de Instancia will apply English, Florida or Moroccan law to the entire estate, without splitting it country by country.

And the forced share is inside it. Article 23(2)(h) says in so many words that the law of the succession governs the disposable part, the reserved shares and the other restrictions on disposal upon death, as well as the claims that persons close to the deceased may have against the estate or the heirs. The European legislator wanted that law, and not Spanish law, to say whether anything is owed to you. That is why the case is not won by arguing about the forced share: it is won by arguing about which law governs.

Habitual residence is not tax residence

This is where most of these cases are decided, and they are decided on documents, not on argument. Habitual residence under the Regulation is not the 183-day tax residence, it is not what the municipal register says, and it is not what appears on the death certificate. Recital 23 calls for an overall assessment of the circumstances of the deceased's life during the years preceding the death and at the time of death, taking account of the duration and regularity of his or her presence and the conditions and reasons for that presence, and requires the result to reveal a close and stable connection.

Recital 24 sets out the uncomfortable case: someone who moves to another country for professional or economic reasons, even for a prolonged period, but keeps a close and stable connection with their State of origin, may still be habitually resident there if that was the centre of interests of their family and social life. It cuts both ways, and the other side knows it too.

And there is one point that changes the strategy: the Court of Justice of the European Union, in its judgment of 16 July 2020 (case C-80/19, E. E.), made clear that the deceased can have only one habitual residence. There cannot be two. So it is not enough to show that he or she also lived in Spain: you have to show that he or she lived in Spain and not in the other place, or the reverse.

How the choice of law in the will is broken

The residence rule gives way if the deceased chose another law. But article 22(1) allowed him or her to choose one thing only: the law of the State whose nationality he or she possessed at the time of making the choice or at the time of death and, where several nationalities were held, the law of any of them. Nothing else. A will choosing the law of the country where the assets are, or the law of the country where the testator lived without being a national of it, contains a void choice, and the succession returns to article 21.

The form can also be attacked. Article 22(2) requires the choice to be made expressly in a declaration in the form of a disposition of property upon death, or to be demonstrated by the terms of such a disposition. Tacit choice exists, but it has to be read inside the will, not assumed because the testator was a foreign national. And the substantive validity of the act of choice is governed by the chosen law itself (article 22(3)), which sometimes opens a front nobody had examined.

Article 83 produces the most surprises and is the most often overlooked. If the will predates 17 August 2015, the choice is valid if it meets the Regulation or if it met the private international law rules in force when it was made, in the State of habitual residence or in any State of nationality (article 83(2)). And there is more: if the disposition was made in accordance with the law the deceased could have chosen under the Regulation, that law is deemed to have been chosen (article 83(4)). Many wills executed in Spain in the 1990s and 2000s, which merely said the testator was disposing in accordance with his or her national law, have ended up operating as a choice of law by this route. Better to know it before filing than after.

Why public policy will not give your share back

It is the first argument that occurs to anyone and it is the one that loses. Article 35 allows a provision of the foreign law to be set aside only if its application is manifestly incompatible with the public policy of the Member State of the forum, and recital 58 reserves this for exceptional circumstances and on grounds of public interest, with the added limit of the Charter of Fundamental Rights.

In international succession cases Spanish courts have not treated the forced share as a component of Spanish international public policy, and there is a textual reason that is hard to get around: the Regulation itself placed reserved shares inside the scope of the applicable law, in article 23(2)(h). To argue that the Spanish forced share always prevails would empty that provision and declare manifestly intolerable the freedom-of-testation systems of much of Europe and of the entire common law world.

It is worth saying plainly, because it saves money and time: if the applicable law is English, Irish or that of a US State, you will not recover the forced share through the public policy door. You recover whatever right that law gives you. Under the law of England and Wales, for example, there is no forced share, but there is family provision under the Inheritance (Provision for Family and Dependants) Act 1975 for the spouse, the children and anyone maintained by the deceased, and there the deadline is six months from the date the grant of representation is taken out, save with the court's permission. Six months. That is why this cannot be left to rest.

Renvoi, the door that does open for property in Spain

There is a technical route that works and is little used. Article 34(1) provides that where the designated law is that of a third State, its private international law rules apply as well, to the extent that they provide for renvoi to the law of a Member State. The law of England and Wales, which since the United Kingdom left the Union is the law of a third State, subjects the succession to immovables to the law of the place where they are located. If the flat is in Malaga, that renvoi sends the succession to that flat back to Spanish law, with its forced share.

With one limit to check before getting your hopes up: article 34(2) excludes renvoi in respect of the laws designated by article 21(2) and by article 22. In other words, renvoi only operates if the foreign law arrived through the general habitual residence rule. If there is a valid professio iuris in the will, this door is shut, and that is why the choice of law is the first place one looks.

A third route remains, exceptional and one that has to be argued well: article 21(2) allows the law of another State to be applied where it is clear from all the circumstances that at the time of death the deceased was manifestly more closely connected with it. Recital 25 has in mind someone who moved to the State of habitual residence shortly before dying. It is not there to correct a habitual residence that simply does not suit us.

What is asked for, before whom, and what it achieves

The claim does not simply ask for the forced share. It asks, in this order: for a declaration of which law governs the succession, for the division made under the wrong law to be set aside or annulled, and for the forced share or the corresponding entitlement to be made up, with its fruits. Rescission for lesion of more than one quarter is measured by the value of the assets when they were allotted (article 1074 of the Civil Code), not by today's value. And if you were left out of the division altogether, article 1080 obliges the others to pay you the share proportionally due to you even absent bad faith.

It goes to the civil section of the Tribunal de Instancia of the place of the deceased's last domicile in Spain, or where most of the assets are, at your choice (article 52.1.4 of the Civil Procedure Act), through ordinary proceedings, which are the ones that apply where the amount exceeds fifteen thousand euros or cannot be calculated. An appeal goes to the Provincial Court, and cassation to the First Chamber of the Supreme Court.

There are two measures asked for at the same time that many people discover too late. If the other side is using a European Certificate of Succession to empty accounts or sell, anyone showing a legitimate interest may ask the issuing authority to amend or withdraw it where it is established that it does not correspond to reality, and to suspend its effects in the meantime (articles 71 and 73 of the Regulation). Over immovables, a cautionary notice of the claim is registered, so that a later buyer cannot say they did not know. A flat already sold to a good-faith third party is a different problem, and a worse one.

How we run the case, step by step

1
Fix the two dates that govern
The date of the deed of division, because the four years of article 1076 of the Civil Code run from there, and the date of the will, because it decides whether the transitional regime of article 83 of the Regulation applies. Everything else falls into place after these two. If the division was made more than three and a half years ago, this stops being a study and becomes an emergency.
2
Reconstruct where the deceased actually lived
It is done with documents from the last years of life, not with recollections: historical municipal registration, healthcare, utility consumption, schools, insurance, everyday bank accounts. The objective is a single habitual residence, that of article 21(1), because the Court of Justice does not allow two. This file is what later holds up or sinks the claim.
3
Read the will with articles 22 and 83 in front of you
You check whether he or she chose a law that could be chosen, that is, the law of a nationality held at the time of choosing or of death; whether it was done in the required form; and whether, the will predating August 2015, a choice is attributed that the testator never wrote in those words. This is where it is decided whether the case runs through the renvoi of article 34 or through habitual residence, and they are different strategies.
4
Freeze whatever is moving
If a European Certificate of Succession is in circulation, you ask the issuing authority to amend or withdraw it and to suspend its effects (articles 71 and 73 of the Regulation), and it is worth remembering that certified copies expire after six months. If there are immovables, a cautionary notice of the claim. If there are accounts, an interim measure. This is asked for at the outset, not once the sale has gone through.
5
Serve the prior negotiation request, which also stops the clock
Since 3 April 2025, resorting to an appropriate dispute resolution method is a condition of admissibility in civil matters (article 5 of Organic Act 1/2025), and a claim not accompanied by the document evidencing the attempt is not admitted. Done properly it also works in your favour: the request interrupts prescription and suspends lapse from the attempted communication, and time resumes if there is no reply within thirty calendar days (article 7).
6
File with the foreign law proved, not merely cited
If the case is won by applying a law other than Spanish law, its content and validity have to be proved (article 281(2) of the Civil Procedure Act and article 33 of Act 29/2015). It is prepared before filing, with an expert opinion and official certification, and if necessary the information is requested through articles 34 and 35 of that same Act. No opinion binds the court, and failure of proof can take the matter into Spanish law.

The evidence that decides the case

The deed of division with its date: it is the day the four-year period started running and, at the same time, the document that shows under which law the estate was divided and what values were assigned.
The will and its date, the certificate from the Central Register of Wills and any wills executed outside Spain. If there are two dispositions, the order between them and the scope of each change the whole case.
The historical municipal registration and the rest of the everyday life of the last years: health card and medical visits, electricity, water and phone consumption, children's school, insurance policies, transport pass, and the movements of the account used for the weekly shop. This is what builds habitual residence, not a witness statement.
The tax returns of recent years and the tax residence certificate: they count as strong indicia, not as proof of habitual residence under article 21. There are deceased persons with tax residence in one country and habitual residence in another, and confusing the two has decided cases the wrong way.
The expert opinion on the foreign law, covering content and validity, and where possible the information obtained through the official channel of articles 34 and 35 of Act 29/2015. Where a law other than Spanish law governs, this is the evidence that decides the case, and the one most often neglected.
The valuation of the assets at the time they were allotted, not today's: it is what measures whether there was lesion of more than one quarter for the purposes of article 1074 of the Civil Code, and in estates with property and company shares it usually calls for your own expert report.

What closes the door

Signing the deed of division or accepting the inheritance without recording that it is done reserving the right to claim the forced share. It is conduct binding on you, and in litigation it weighs far more than it seems on the day you sign it so as not to make trouble.
Letting the four years from the day of the division go by. Article 1076 of the Civil Code does not count from the death, nor from the day you found out: it counts from when the division was made, and that day is usually much further back than the client thinks.
Filing the claim without the document evidencing the prior negotiation attempt. Since 3 April 2025 it is a condition of admissibility (articles 264.4 and 399(3) of the Civil Procedure Act), the claim is rejected, and time keeps running while it is redone.
Building the case on the public policy of article 35. It is the argument that sounds best and wins least, because the Regulation itself placed reserved shares inside the applicable law in article 23(2)(h). Spending the claim there means losing the chance to argue residence and choice of law, which is where the case actually was.
Invoking a foreign law and failing to prove it. If its content and validity are not established, article 33(3) of Act 29/2015 exceptionally allows Spanish law to be applied, and that sometimes saves the case and sometimes sinks it, depending on which side you are on. It is not a safety net: it is a lottery.
Taking what you are offered to close the matter without documenting that it is received on account of the forced share and without waiving anything. A payment accepted in silence is later defended as acceptance of the division, and it strips you of the best argument you had.

The law that applies

Art. 21 Reglamento (UE) 650/2012. The law applicable to the succession as a whole is that of the State of the deceased's habitual residence at the time of death. Paragraph 2 allows, exceptionally, the application of the law of the State with which he or she was manifestly more closely connected. 32012R0650
Art. 22 Reglamento (UE) 650/2012. The deceased may choose only the law of a State whose nationality he or she holds at the time of choosing or at death. The choice must be made expressly in a disposition of property upon death or be demonstrated by its terms, and its substantive validity is governed by the chosen law. 32012R0650
Art. 23.2.h Reglamento (UE) 650/2012. The law of the succession governs the disposable part, the reserved shares and the other restrictions on disposal upon death, as well as the claims that persons close to the deceased may have against the estate or the heirs. 32012R0650
Art. 34 Reglamento (UE) 650/2012. Where the designated law is that of a third State, its private international law rules also apply if they refer back to the law of a Member State. Renvoi is excluded in respect of the laws designated by articles 21(2) and 22. 32012R0650
Art. 35 Reglamento (UE) 650/2012. A provision of the designated law may be set aside only if its application is manifestly incompatible with the public policy of the Member State of the forum. Recital 58 reserves this for exceptional circumstances. 32012R0650
Art. 83 Reglamento (UE) 650/2012. Transitional regime for dispositions made before 17 August 2015. Paragraph 4 deems chosen the law in accordance with which the disposition was made, if the deceased could have chosen it under the Regulation. 32012R0650
Arts. 1074 y 1076 Código Civil. Divisions may be set aside for lesion of more than one quarter, measured by the value of the assets when they were allotted, and the rescissory action lasts four years counted from when the division was made. BOE-A-1889-4763
Arts. 806, 807, 815 y 1080 Código Civil. They define the forced share and who the forced heirs are, allow a forced heir who has received less to claim the top-up, and require the person passed over to be paid the share proportionally due, even where the division is not set aside. BOE-A-1889-4763
Art. 52.1.4.º Ley de Enjuiciamiento Civil. In proceedings on inheritance matters, the competent court is that of the deceased's last domicile and, if that was in a foreign country, that of his or her last domicile in Spain or of the place where most of the assets are, at the claimant's choice. BOE-A-2000-323
Arts. 264.4.º, 281.2 y 394.1 Ley de Enjuiciamiento Civil. The claim must be accompanied by the document evidencing the prior negotiation attempt; foreign law must be proved as to content and validity; and first-instance costs fall on the party whose claims are wholly dismissed, save for serious doubts of fact or law. BOE-A-2000-323
Arts. 33 a 35 Ley 29/2015 de cooperación jurídica internacional. Proof of foreign law is assessed on the rules of sound judgement and no expert opinion binds the court. Exceptionally, if the parties fail to establish content and validity, Spanish law may be applied. Courts, notaries and registrars may request information through the central authority. BOE-A-2015-8564
Arts. 5 y 7 LO 1/2025 de eficiencia del Servicio Público de Justicia. Since 3 April 2025, resorting to an appropriate dispute resolution method is a condition of admissibility in civil matters, with a closed list of exceptions that does not include inheritance disputes. The negotiation request interrupts prescription and suspends lapse from the attempted communication. BOE-A-2025-76

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

My father was British and chose English law in his will. Am I left with nothing?

Not necessarily, but the attack is not on the forced share: it is on the choice. You check whether he held that nationality when choosing or at death, whether the choice was made in the form required by article 22(2) of the Regulation, and what effect article 83 has where the will predates 17 August 2015. If the choice falls, the law of habitual residence returns. And even if it does not, where English law arrived through habitual residence rather than through choice, the renvoi of article 34 can send the succession to immovables located in Spain back to Spanish law.

He had lived in Spain for twenty years but still paid tax in his own country. Where was his habitual residence?

Probably in Spain, but that has to be proved. Tax residence and habitual residence under the Regulation are different things: the second is decided by an overall assessment of the years preceding the death, the duration and regularity of the presence and the conditions and reasons for it, looking for a close and stable connection. Twenty documented years of everyday life in Spain weigh far more than a foreign tax certificate, and the Court of Justice has made clear that there can be only one habitual residence.

I have already signed the deed of division. Is it over?

No, but it gets harder. The division can be set aside for lesion of more than one quarter within four years of the day it was made, and it can be void if made with someone who was not an heir or where consent was vitiated, with the four-year period of article 1301 of the Civil Code. What really hurts is signing without reservation, because the other side will present it as acceptance. At Managora the first step is to fix the case calendar and stop whatever is still moving.

The will is from 2009, before the Regulation. Does it count for anything?

It counts, and sometimes against you. Article 83(4) deems chosen the law in accordance with which the disposition was made, if the deceased could have chosen it under the Regulation. Wills executed in Spain that merely stated the testator was disposing in accordance with his or her national law have ended up operating as a choice of law by that route. That is why the will is read in full, with its date, its language and its parallel columns where it has them, before deciding where to attack.

The assets are in Spain but he died outside the European Union. Can I sue here?

Yes, if the conditions of article 10 of the Regulation are met: that there are estate assets in Spain and that the deceased had Spanish nationality at the time of death or, failing that, had been habitually resident here and no more than five years have passed since that residence changed when the matter is brought before the court. That five-year period also runs out, and it is one almost nobody remembers until it has already gone.

How long can this take and where does it start?

Ordinary proceedings of this kind rarely take less than a year at first instance, and proving the foreign law lengthens it. Before that, the compulsory prior negotiation has to be exhausted, which in exchange suspends lapse while it lasts. So the order is always the same: first fix the deadlines and freeze whatever is moving, then negotiate with the case already documented, and file only once the evidence of habitual residence and of the foreign law is closed.

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.