Since 3 April 2025 nobody can file a claim in court to divide an inherited flat without first proving that they tried to reach a settlement with their siblings. This is required by Organic Law 1/2025 on measures to improve the efficiency of the Public Justice Service, which made a prior attempt at negotiation, mediation or conciliation a condition for the admission of a civil claim. Until that date a co-owner who wanted out of the co-ownership went straight to court with the action for division of common property under article 400 of the Spanish Civil Code and the judge ordered the sale without any preliminary step. Now that prior step must be documented and, if it is missing, the claim is rejected; in addition, a sibling’s unjustified refusal to sit down and negotiate can have consequences for costs. The other reform still shaping the field is Law 15/2015 on Voluntary Jurisdiction, in force since July 2015, which moved the declaration of heirs where there is no will and the appointment of the court-appointed estate partitioner to the notary, so that a large part of the division can be closed without setting foot in a courtroom.
Within that framework I explain how an inheritance is divided between siblings when the main asset is a flat and the siblings cannot agree, which is the most common case that comes into the firm.
What the Civil Code imposes before anyone negotiates
The division does not start with the siblings’ wishes, it starts with the law. Children are forced heirs (article 807 of the Civil Code) and their forced share is two thirds of each parent’s estate (article 808). Of those two thirds, one is divided equally between all the children and the other, known as the «mejora» or improvement third, can be assigned by the father or mother to one or several of them. The remaining third is freely disposable. If a spouse survives, he or she holds a life interest over the improvement third (article 834).
This changes when the deceased held Galician civil residence status, which is common in A Coruña and depends on where and under which regional status the person lived rather than on where they died. Law 2/2006 on Galician Civil Law reduces the children’s forced share to one quarter of the estate and configures it as a right to receive a value, which the testator may order to be paid in cash. A Galician parent can therefore leave the whole flat to one child and compensate the others in money without infringing any forced share, something that under the common Civil Code would require a much tighter calculation.
Once the forced share is respected, article 1058 allows adult heirs to distribute the estate as they see fit, and article 1061 reminds them that the partition must preserve equality as far as possible by forming lots of assets of the same nature. No co-heir is obliged to remain in undivided ownership and any of them may request partition at any time (article 1052). The Code allows an agreement to keep the asset undivided for a maximum of ten years, renewable, but only if everyone signs it.
With a will, without a will, and the sibling who has already died
If there is a will, the partition follows what the father or mother ordered, always within the limits of the forced share. If the will appointed an estate partitioner, that person forms the lots and the siblings can only challenge the result on specific grounds.
Without a will, intestate succession opens. Children inherit in their own right and in equal shares (article 932). Before that, a declaration of heirs must be obtained, which since 2015 is processed before a notary rather than a court. Whether or not a will exists is checked with the certificate from the General Registry of Last Wills, which can be requested fifteen days after the death.
When one of the siblings died before the parents, his or her share does not disappear or accrue to the others. His or her children take that place by right of representation (article 934) and inherit per stirpes (article 926), that is, they split between them exactly the share that would have gone to their father or mother. Three siblings, one of whom predeceased leaving two children, means three equal parts, one of which is divided between the two nephews or nieces. If the sibling died after the parents but before accepting, his or her own heirs receive the right to accept or renounce (article 1006).
The flat, the asset that cannot be split
A flat cannot be physically divided. Article 1062 of the Civil Code offers two ways out. The first is to award it to one of the siblings with the obligation to pay the others the excess in money. The second is to sell it, and here lies the rule that surprises anyone who wants to keep the family home, because «it shall be sufficient for one single heir to request its sale at public auction, with admission of outside bidders, for this to be done». A single sibling can force the auction of the flat even if the other two want to keep it.
If the partition has already been done and the flat was left in co-ownership in thirds, the situation is that of an ordinary co-ownership. Article 400 then applies, allowing any co-owner to request division at any time, and since the asset is indivisible the outcome is again the award to one with compensation or the sale. In practice this is called termination of co-ownership.
Before reaching the auction there is room for agreements that the law supports. Awarding the flat to a sibling with compensation in money has a different tax treatment from selling to a third party, often a more favourable one, precisely because it is a case of an indivisible asset. The valuation of the flat, the moment it is appraised and the way the compensation is paid are the three points on which most negotiations break down, and all three have a technical solution.
The sibling who lives in the flat without paying anything
This is the most repeated conflict. One of the siblings cared for the parents or simply stayed on, and is still living in the flat years later without paying the others. Article 394 of the Civil Code allows each co-owner to use the common asset provided he or she does not prevent the others from using it according to their rights. When one occupies it exclusively and excludes the others, the Supreme Court has repeatedly recognised that the others may claim financial compensation, in practice a rent proportional to their shares, with effect from the moment they formally demand that he or she cease the exclusive use or pay compensation. Before that demand the occupation is deemed tolerated and generates no debt, so years of silence cost money.
The occupying sibling does not escape the charges either. Article 393 obliges all co-owners to contribute to maintenance costs in proportion to their shares, but utilities and ordinary use are borne by whoever enjoys the flat. If the compensation is recognised in a judgment and the sibling does not pay, the problem becomes one of collection, which I wrote about in collecting from a debtor who claims to have nothing.
What the other siblings cannot do is change the lock, cut off utilities or force their way in. The occupying co-owner holds possession and those actions turn against whoever takes them.
When a sibling will not sign or does not answer
Obstruction takes different forms and each has its instrument. If the sibling neither accepts nor renounces the inheritance, any interested party may ask a notary to serve notice giving him or her thirty calendar days; if there is no answer, the inheritance is deemed accepted outright (article 1005). If the sibling has accepted but will not cooperate in the partition, heirs representing at least fifty per cent of the estate may ask the notary or the court clerk to appoint an estate partitioner (article 1057), who carries out the partition without the signature of the objecting sibling. With three siblings in equal shares, two of them reach that percentage.
When the deceased held Galician civil residence status there is also the majority partition regulated by the Galician Civil Law Act, which allows heirs holding more than half of the divisible estate to apply for partition before a notary even if the rest do not cooperate, subject to notification and valuation requirements that must be met carefully because failing them invalidates it.
Once the notarial routes are exhausted there remains the judicial division of the estate, the special procedure under the Civil Procedure Act that any co-heir may request and which ends with a partition approved by the court. And if the flat is already in co-ownership, the action for division of common property under article 400, which since April 2025 requires the prior attempt at out-of-court settlement I described at the start.
| Route | Who can request it | What is obtained |
|---|---|---|
| Notarial notice to accept or renounce (art. 1005 CC) | Any interested party | The sibling becomes an accepting heir after thirty days of silence |
| Court-appointed estate partitioner (art. 1057 CC) | Heirs holding at least 50 % of the estate | Partition carried out by a third party without the objector’s signature |
| Majority partition (Galician Law 2/2006) | Heirs holding more than half of the estate, deceased with Galician civil status | Notarial partition without the uncooperative sibling |
| Judicial division of the estate (Civil Procedure Act) | Any co-heir | Partition approved by the court |
| Division of common property (art. 400 CC) | Any co-owner, after a prior attempt at settlement | Award to one with compensation or sale at auction |
Choosing the wrong route or mixing them costs months and money, and this is the point where the firm comes in, first to assess whether two of the three siblings can close the partition without the third and then to bring the claim that applies within our civil law practice.
What a sibling received during the parents’ lifetime is deducted from his share
This is one of the questions most often asked and least often answered. Article 1035 of the Civil Code obliges a forced heir who inherits alongside other forced heirs to bring back into the estate whatever he or she received from the deceased during the latter’s lifetime by gift or other gratuitous title, so that it is counted in the forced shares and in the partition account. This is collation. The sibling to whom the parents gave the deposit for his house, or business premises, or a flat, takes that much less from the estate (article 1047).
The value deducted is not the value at the date of the gift, it is the value of the assets at the time the estate is valued (article 1045). A flat gifted in 2005 is collated at what it is worth at partition, not at what it was worth then. Collation is avoided only if the parents expressly waived it when making the gift or in the will (article 1036), and even then the gift is counted to check that it does not infringe the others’ forced share. Expenses for maintenance, education or illness are not collated (article 1041). Customary presents are not either.
The practical problem is proof. Gifts of money between parents and children are rarely put in a deed and surface in the parents’ bank statements. Requesting those movements and sorting them before sitting down to negotiate changes the division.
Disinheriting a sibling
Parents may only deprive a child of the forced share on the grounds fixed by law, and they must say so in the will, stating the ground (articles 848 and 849 of the Civil Code). For children, the grounds are having refused the parents maintenance without legitimate reason and having physically mistreated or seriously insulted them (article 853), together with the grounds of unworthiness referred to in article 852, among them having made an attempt on the deceased’s life. Since 2014 the Supreme Court has accepted that psychological mistreatment and continued emotional abandonment fall within physical mistreatment.
If the disinherited sibling denies the ground, the burden of proving it falls on the other heirs (article 850), and if they fail the disinheritance is annulled insofar as it harms the forced share (article 851). The children of the disinherited sibling keep the right to the forced share their father would have received (article 857), so disinheriting a sibling who has children does not increase the others’ share. In Galicia Law 2/2006 has its own list of grounds, similar but not identical. I dealt with this in more detail in can you be disinherited, the forced share.
Half-siblings and children of different marriages
All children inherit equally from their parent, regardless of the marriage they come from. The Constitution and article 108 of the Civil Code equate all filiations and article 932 makes children inherit without distinction. What happens in blended families is that each child inherits only from his own father and his own mother. If the father had two children from a first marriage and one from the second, all three inherit from the father in equal shares, but only the third inherits from the second wife. Community property is liquidated first, and the widow’s half does not form part of the husband’s estate.
The rule that full siblings receive double what half-siblings receive (article 949) applies only when the deceased is a sibling without descendants or ascendants and his siblings inherit, not when inheriting from the parents.
Debts are inherited too
Whoever accepts the inheritance outright is liable for the deceased’s debts with the inherited assets and with his own (article 1003). Creditors may demand full payment from any heir who accepted in that way, without prejudice to that sibling later recovering from the others (article 1084), and they may oppose the partition being carried out until they are paid or given security (article 1082). The alternative is acceptance with benefit of inventory (article 1010), which limits liability to what is inherited but requires formalities and deadlines that are easily lost. Between siblings, debts are shared in proportion to their shares, and whoever pays more has a claim against the others.
A frequent warning. Selling furniture, using money from the parents’ account or carrying out works in the flat can be treated as tacit acceptance (article 999), and with it the possibility of renouncing or limiting liability is lost.
Taxes, who pays them and when
Each sibling is liable for Inheritance Tax on what he or she receives, and the deadline for filing is six months from the death, extendable by a further six months if requested within the first five. In Galicia the regional rules provide a very high kinship reduction for children which in practice leaves most inheritances between parents and children with no tax to pay, although the return must still be filed. The flat also generates the municipal capital gains tax, settled by each heir in proportion to his or her share and within the same six-month period.
Disagreement between siblings does not suspend any of those deadlines. The tax can be filed without having done the partition, on the legal shares, avoiding surcharges while the division is argued over. When the flat is later awarded to one sibling with compensation in money, the treatment under Transfer Tax and income tax depends on how it is documented and valued, and a difference in approach means thousands of euros.
The sibling who lives abroad
There is no need for him or her to travel. A power of attorney can be granted before the Spanish consul or before a notary in the country of residence, in which case the document needs a Hague apostille and a translation, and a sibling or the lawyer signs on his or her behalf. Prior private agreements between siblings can be signed remotely with an electronic signature, as I explained in the validity of electronic signatures in contracts, although the deed of partition of the flat requires a notary. If it was the father or mother who was habitually resident outside Spain at death, the European Succession Regulation may mean the estate is governed by the law of that country, unless Spanish law was chosen in the will.
What you can do today without making anything worse
Keep the title deeds, the parents’ bank statements for recent years, the receipts showing who has paid the community fees, the property tax and the repairs to the flat, and any document recording gifts or loans between parents and children. Do not sign any partition, renunciation or assignment of rights that you do not fully understand. Do not use money from the accounts or remove items from the flat, because that is tacit acceptance. Do not change locks or cut off utilities to the sibling who lives there. If he or she has already been occupying the flat for years without paying, the formal demand is what triggers the right to compensation, and it should be drafted by someone who knows how it has to be worded.
Dividing on your own with a sibling who obstructs ends in one of these results. A partition is accepted that does not respect the forced share or ignores a gift from years ago, and that partition is later challenged. Or a claim is filed without the prior step required by the 2025 reform and the claim is rejected. Or the tax deadline is missed while the argument goes on and the surcharges arrive. The firm practises civil law and in a matter like this we first calculate what you are genuinely entitled to, collation and forced share included, and then choose the route that closes the partition without the objecting sibling’s signature, whether notarial or judicial. You can call +34 677 841 007 or write through the contact page. When you call, have to hand the death certificate, the will or the last wills certificate if you have already requested it, the title deed of the flat, a list of the parents’ accounts and debts, and the date on which the sibling occupying the flat began living there.
Frequently asked questions
Can one sibling force the others to sell the inherited flat?
Yes. Article 1062 of the Spanish Civil Code provides that it is sufficient for one single heir to request the sale at public auction with admission of outside bidders for this to be done, and if the flat is already in co-ownership article 400 allows any co-owner to request division at any time. The alternative to the auction is for one of the siblings to take the flat and pay the others’ shares in money. Since April 2025 a claim for division requires proof of a prior attempt at agreement.
If a sibling received money from my parents during their lifetime, is it deducted from his share?
As a general rule, yes. This is collation under article 1035 of the Spanish Civil Code. What was received as a gift is brought back into the estate and the sibling who received it takes that much less, valued at the time of partition and not at the time of the gift. It is only avoided if the parents expressly waived collation, and even then the gift is counted to check that it does not infringe the others’ forced share.
What happens to the share of a sibling who died before my parents?
His or her children take that place by right of representation and inherit per stirpes, that is, they split between them the exact share that would have gone to their father or mother. With three siblings, one of whom predeceased leaving two children, the estate is divided into three equal parts and one of them is shared between the two nephews or nieces. If the sibling died after the parents but before accepting, it is his or her heirs who decide whether to accept or renounce.
Do I need a lawyer to divide an inheritance between siblings?
If the siblings agree on the valuation and on who keeps the flat, the notary is enough and a lawyer only adds the tax review, which in Galicia is usually quick. Nor is it worth litigating over a small share in a flat of little value, because the costs of appraisal, proceedings and auction eat up the difference. You do need one when a sibling will not sign, when someone lives in the flat without paying, when there were lifetime gifts that others do not acknowledge, when the parents left debts, or when the partition proposed to you does not respect your forced share, because in those cases what is at stake is measured in tens of thousands of euros and the route chosen determines whether it closes in months or in years.