A person who holds Galician civil residency status («vecindad civil») and moves to another region loses it after ten years of continuous residence outside Galicia unless they have first declared at the Civil Registry that they wish to keep it (article 14.5 of the Spanish Civil Code). With that status goes the possibility of granting an apartación or a pacto de mejora, because both instruments exist only in Galician civil law and are governed by the personal law of the person granting them at the time of signature. The second deadline appears on no calendar. Succession agreements can only be granted by adults with full legal capacity (article 210 of Law 2/2006 on Galician Civil Law), so once the parent is no longer able to understand what they are signing, or has died, the estate is distributed under the general rules, with a forced share of one quarter for the children and the partition as the arena for the dispute. Every year the firm sees families who spent a decade talking about an apartación for one child and come to us when it can no longer be done.
What the apartación is and why the law treats it as an inheritance
Article 224 of Law 2/2006 defines the apartación as the agreement by which a person who would hold the status of forced heir if the succession opened at that moment is irrevocably excluded, personally and together with their line of descent, from the status of forced heir of the grantor, in exchange for the specific assets allocated to them. In plain terms, the parent hands a child a specific asset today, a flat, company shares, a plot of land or money, and that child gives up for good any claim to their forced share when the parent dies.
The waiver weighs as much as the forced share does. In Galicia descendants are entitled to one quarter of the net value of the estate (article 243), and the forced heir holds the position of a creditor of the estate, with no real right over specific assets. I have explained how that share works and when a child can be left out in the piece on whether you can be disinherited. From the moment of signature the apartado no longer cares how much the parent’s estate is worth at death, because they have already been paid. And the phrase «personally and together with their line of descent» means that their own children cannot claim in their place either if they die before the grandparent.
Three rules set the framework. The agreement must be executed as a notarial deed and without one it has no effect whatsoever (article 211). What is allocated does not have to match the theoretical value of the forced share, the law allows it to be worth more or less, and that freedom is what makes the instrument useful. And the apartado loses the status of forced heir, but not necessarily that of intestate heir, so if the parent dies without a will and the deed did not provide for their exclusion from intestate succession, they take alongside their siblings like any other child. The law itself also provides that what was received under the apartación is brought into hotchpot when the apartado concurs with other forced heirs, unless the grantor expressly waives that. These are clauses decided at the drafting stage which change the outcome years later.
The pacto de mejora, the other piece
Article 214 of the same law defines pactos de mejora as agreements by which succession to specific assets is agreed in favour of descendants. The difference from the apartación lies in what happens to the forced share. The mejorado receives a specific asset, now or on the grantor’s death, and remains a forced heir. What was received is counted when the time comes to calculate their share, but they keep the right to claim whatever is missing.
The law allows two forms. In a pacto de mejora with present delivery the mejorado becomes owner from the date of the deed, subject to whatever the grantor chooses to reserve, usually a life usufruct over the home or the obligation to look after the parents. In a pacto without present delivery the grantor keeps ownership, the asset passes to the mejorado on death and in the meantime the grantor is bound by the agreement, with whatever powers they reserved in the deed. Unlike the apartación, which is irrevocable, the mejora can be set aside in the limited cases listed in the law, among them the mejorado’s failure to perform the obligations undertaken. And since the provision speaks of descendants without qualification, a pacto de mejora can be granted in favour of a grandchild even while that grandchild’s parent is alive, which the apartación does not allow because it requires the beneficiary to hold the status of forced heir at that moment.
Apartación, mejora, gift and will
All four instruments serve to allocate an asset to a child and are confused every day. The table sets out where they part ways.
| Instrument | When the beneficiary receives | Can it be undone? | Effect on the beneficiary’s forced share | How it is taxed |
|---|---|---|---|---|
| Apartación | Now, on the deed | No, it is irrevocable | Lost, personally and for their line of descent | Inheritance tax, as an acquisition on death |
| Pacto de mejora with present delivery | Now, on the deed | Only on the limited grounds set by law | Kept, and what was received is counted against it | Inheritance tax, as an acquisition on death |
| Pacto de mejora without present delivery | On the grantor’s death | Only on the limited grounds set by law | Kept | Inheritance tax, on death |
| Gift | Now, on the deed | Only on the Civil Code grounds, such as ingratitude or failure to perform conditions | Kept, and the gift is brought into hotchpot | Gift tax for the child, and the parent pays income tax on the gain |
| Will | On death | Yes, at any time | Kept | Inheritance tax, on death |
Two ideas come out of the table and they decide most cases. A gift leaves the donor with a capital gain in personal income tax on the difference between what the asset cost them and its current value, whereas succession agreements with present delivery are treated for tax purposes as acquisitions on death, for which the Income Tax Act excludes that gain in the hands of the transferor. And a will can be changed whenever one likes, but it gives nobody certainty until the succession opens, whereas the apartación and the mejora lock in today what each child is going to receive.
What it is actually used for
The situations that reach the firm repeat themselves. A family business or a farm that cannot be split up and must end up in the hands of the child who works in it, with the others compensated through different assets. A child who needs the home or the capital now and parents who prefer to hand it over with the accounts settled. A relationship with a child that the parents want to close financially so that, once the parent dies, that child has nothing to claim from their siblings. And families with several children in very different financial positions, where the parents prefer to distribute different assets to each during their lifetime, an apartación for some and a mejora for others, rather than leave the partition to chance.
The most common mistake is on the grantor’s side. Handing over the home they live in without reserving a usufruct, or leaving themselves without liquidity for the rest of their life, cannot be fixed afterwards by any agreement, because the apartación admits no going back. The drafting of the deed must provide for who occupies the house, who pays the expenses and what happens if the apartado dies before the parent.
What the tax authorities look at
Three different taxes are involved and it pays to keep them separate. For inheritance and gift tax, the apartación and the pacto de mejora with present delivery are taxed as acquisitions on death rather than as gifts. That is the tax reason so many apartaciones are signed in Galicia, because the region applies a very high inheritance tax reduction for children and descendants, one that has been amended several times in recent years. I deliberately do not give the current figure here, because regional legislation changes and an out-of-date figure in a blog article is worse than none. It is checked on the day the agreement is planned.
For the grantor’s income tax, a transfer under a succession agreement with present effect does not generate a capital gain, which is exactly what does happen with a gift. This is where the trap that generates most enquiries lies. Since the reform introduced by Law 11/2021, article 36 of the Income Tax Act provides that if the beneficiary transfers the asset before five years have passed from the agreement or from the death of the grantor, whichever comes first, they step into the grantor’s position as regards the acquisition value and date whenever that value is lower. The child who receives a flat through an apartación and sells it two years later pays income tax on the gain the parent had built up over decades.
The third is the municipal tax on the increase in value of urban land, the so-called municipal capital gains tax, which on transfers on death is paid by the acquirer and which many Galician town councils reduce when the property was the transferor’s main residence. It depends on each municipal by-law and on there being a real increase in value.
At the firm, before the family sets foot in the notary’s office, we calculate with the figures in force that day what each party will pay and when, and we draft the agreement so that it fits with the will that already exists and with what the parents intend for the other children. It is one of the areas in which we practise within civil law.
What happens after signing
Several later situations generate more litigation than the deed itself.
The apartado sells the asset. They can do so from the following day, it is theirs. The only consequence is a tax one, the five-year rule I have just explained, together with whatever was agreed in the deed, for instance a usufruct in favour of the parent that the buyer will have to respect.
The grantor makes a will and includes the apartado. That is valid. The apartación removes the child’s right to demand their forced share and leaves intact the possibility of receiving by the parent’s free choice. The parent may name them heir or leave them a legacy, and may equally choose not to. What the apartado can no longer do is claim anything if the will leaves them out.
The grantor dies without a will. If the deed did not provide for exclusion from intestate succession, the apartado inherits alongside their siblings in the same shares as them. Many parents sign convinced that the apartado child will never inherit again, and it is their heirs who discover that the deed said otherwise.
The siblings consider that the apartado took too much. They cannot annul the apartación on that ground. Their protection lies in the fact that, when the others’ forced shares are calculated, the value of what was allocated is counted, and in the fact that the action to claim the forced share or its top-up is time-barred fifteen years after the death. If the apartación leaves the estate so depleted that the others’ forced shares cannot be met, there are reduction mechanisms, but they require accounts and evidence, and grievance alone is not enough.
Someone wants to challenge the deed. The grounds are those of any contract, the grantor’s lack of capacity at the time of signing, defective consent, sham or defect of form. In practice the challenge for the parent’s incapacity is the one most often attempted, which is why in agreements involving elderly people capacity is documented before signing.
Assets outside Galicia and grantors who no longer live here
What determines the validity of the apartación is the grantor’s Galician civil residency status when the agreement is granted, regardless of where the assets are. Article 9.8 of the Civil Code subjects succession agreements to the personal law of the disposer at the time they are granted, so a Galician can grant an apartación to a child with a flat in Madrid or business premises in Bilbao and the agreement remains valid even if their status changes later. Registration at the Land Registry of another region may require explaining the instrument to a registrar who does not see it every day, and that is a step that gets prepared in advance.
The reverse case is the one that opens this article. A person who has lived ten years outside Galicia without a declaration of retention has acquired the civil residency status of the place where they live and can no longer grant an apartación. And a person who has lived ten years in Galicia without being Galician by origin has acquired it, or can acquire it after two years by declaring so at the Civil Registry, and with it access to these instruments. Checking civil residency status is the first thing we do, because void apartaciones get signed by taking it for granted.
For residents of another European Union Member State the European Succession Regulation comes into play, which recognises succession agreements with its own rules on applicable law. That is examined case by case.
What you can do today without signing anything
Before planning the agreement it helps to gather the title deeds of the assets to be allocated, with their acquisition date and value, because the five-year rule turns on that information. It helps to locate the parents’ current will, if there is one, because the agreement must fit with it or replace it. It helps to check the civil residency status of the person who is going to grant the apartación, especially if they have lived away. And it helps not to sign any private document between siblings about the distribution, nor any waiver undertakings, nor promises of compensation. Those papers are worthless as a succession agreement, because the law requires a notarial deed, and they are perfectly good as evidence in the litigation that follows. The validity of a contract in a private document or signed electronically, which in other areas is complete, is of no use here at all, as I explained when writing about electronic signatures.
Nor is it wise to move money between parents and children on account of the future apartación. An earlier transfer is a gift with its own taxation and its own hotchpot, and it complicates the agreement rather than bringing it forward.
And for the sibling who is left out, one note. Their forced share is a claim against the estate, collecting it depends on there being something to pay it with, and a badly calculated apartación can leave them in the position of any creditor facing someone with no assets, with the difficulties I described when writing about collecting from a debtor with nothing.
Signing an apartación on a template deed, without tax calculations and without deciding the clauses on intestate exclusion, hotchpot and usufruct, leaves the parent tied to an irrevocable agreement that does not say what they believed, and leaves the siblings a lawsuit with a fifteen-year limitation period ahead of it. At the firm we check the grantor’s civil residency status and capacity, calculate the tax cost of each instrument with the figures in force, draft the deed and coordinate it with the will and with the other children, and we defend in court the forced heir who is left out or the apartado whose deed is challenged. You can call +34 677 841 007 or write through the contact page. When you call, have to hand the title deeds of the assets with their purchase date, the parents’ latest will if there is one, the list of children and grandchildren, and where the grantor has lived over the last ten years. With that, the first meeting is already enough to decide which instrument suits.
Frequently asked questions
What happens if I sell the flat shortly after receiving it through an apartación?
You can sell it, it is yours from the date of the deed. What changes is your income tax. If you transfer it before five years have passed from the apartación or from the grantor’s death, whichever comes first, the gain is taxed using the value and date at which your parent bought the flat, and not the value stated in the apartación. If you wait until the five years have passed, the gain is calculated from the value declared in the apartación.
Can an apartación be made in favour of a grandchild or of several children at once?
In favour of several children, yes, with a separate deed for each and with assets of different value if the parents so wish, because the law does not require what is allocated to match the forced share. In favour of a grandchild only if at that moment they stand in the place of a deceased child, since the apartación requires the beneficiary to be a forced heir at the time of signing. If the grandchild’s parent is alive, the right instrument is the pacto de mejora, which allows any descendant.
Is the apartación valid if the assets are in Madrid or in another region?
Yes. What matters is that the grantor holds Galician civil residency status at the time the agreement is granted, wherever the assets may be. The agreement remains valid even if the grantor later changes that status. What must be checked beforehand is that they have not lost it by living ten years outside Galicia without declaring that they wished to keep it.
Is an apartación worth it for me, or is it better to leave it to the will?
It is worth it when there is an asset that cannot be divided and a specific child who should keep it, when a child needs the assets now and the parents want to settle accounts with them, or when the parents want a child to have nothing to claim in the future. It is not worth it if the parents need that asset to live on or have no other property, if there are doubts about the relationship with that child and the parents want room to change their mind, or if there is a single child and a modest estate, because a will achieves the same without the expense. In those cases the will, which can be revoked at any time, is the right tool.