In Galicia a child can only give up their forced share during a parent’s lifetime by apartación, and an apartación only exists if it is signed as a public deed before a notary, because Law 2/2006 on Galician civil law provides that without one the agreement has no effect whatsoever. Any other renunciation made before the parent’s death, in a private document, a letter or an agreement between siblings, is void. The deed also fixes choices that are made when it is drafted and that nobody can correct later, such as whether the child also drops out of the estate when there is no will, or whether what they receive now will be deducted if they end up inheriting alongside their siblings.
I am Ana María Reza Cortiñas, member no. 6064 of the A Coruña Bar Association, law graduate of the University of A Coruña with a Master’s in Business Law, and managing partner of the civil practice at Perseus & RC Abogados. I prepare apartaciones for parents who want to settle during their lifetime who gets a house, land or a family business, and I also advise the child who is asked to sign. The concept, compared with the pacto de mejora, a gift and a will, is explained in apartación and pacto de mejora, and our wider work is on the inheritance page.
Who can grant it and to whom
The person granting it must have Galician civil status (vecindad civil) on the day of signing, be of age and have full capacity. What counts is that day’s status, not where the assets are, and the agreement stays valid if the person later changes status, although the other heirs’ forced shares will follow the law that governs the estate at death. Civil status of this kind is only held by Spanish nationals, so for a foreign national living in Galicia whether apartación is available depends on the European succession rules, and we look at it case by case. I check status first, and capacity, which for elderly clients is best documented on the day of signing.
The beneficiary must be someone who would be a forced heir if the parent died that day. That includes children, the spouse, who is also a forced heir in Galicia, and a grandchild only when standing in for a child who can no longer inherit, usually because they died first. It is given in exchange for specific assets, a flat, land, company shares or money, and their value may be above or below the theoretical forced share. The person granting it can sign through a special power of attorney.
The clauses that decide what happens later
The child is excluded from the forced share for good, for themselves and their line, so their own children cannot claim it either. What apartación does not do by itself is remove them from an estate with no will. If the parent dies intestate and the deed did not expressly exclude them, they inherit alongside their siblings. The second choice is whether what they received is brought into account if they inherit with other forced heirs, which applies unless expressly waived. The third is not required by law, but I advise it when the parent hands over the home they live in or their source of income, and it consists of reserving the usufruct or the income. Apartación cannot be reversed.
The other children should understand one consequence before anyone signs. The child who received an apartación still counts when the forced share is divided. With three children and one of them excluded, each of the other two is entitled to one third of the overall share, not one half.
What cannot be undone, and what the siblings can claim
Apartación is irrevocable. It can only be annulled on the grounds that apply to any contract, such as lack of capacity or vitiated consent, and whoever challenges it must prove them. The other children are protected in the estate calculation. What was handed over is added back, at its value then, updated, and if what is left at death is not enough to pay their shares, apartaciones can be reduced after legacies and gifts. That claim is time-barred fifteen years after the death. See the Galician forced share page.
Tax and selling what was received
For inheritance tax, apartación is a succession title and is taxed as an acquisition on death, not as a gift, and the parent does not incur the income tax gain a gift would trigger. The catch is in article 36 of the Spanish Income Tax Act. If the child sells within five years of the deed, or of the parent’s death if earlier, the gain is calculated from the parent’s acquisition value and date where that value is lower. We work out the inheritance tax under the Galician rules in force on the day, before signing.
Where we are
Rúa Torreiro 13, 3.º C, 15001 A Coruña, Spain. Phone +34 677 841 007. If the parent or any of the children live outside A Coruña or abroad, we prepare the deed by video call, in English.
Related reading
- Apartación and pacto de mejora, lifetime inheritance agreements in Galicia
- Gifting a home to your children in Spain, what to know before you sign
- Selling a family business in Spain when the children will not take over
- Making a will in Galicia, why it is worth it
Frequently asked questions
Can I use apartación with my husband or wife?
Yes. In Galicia a spouse who is not separated is a forced heir, and apartación can be granted to anyone who would have a forced share if the estate opened on the day of signing. It can help in second families to settle during life what goes to the spouse and what goes to the children. Like any apartación, it is irrevocable and requires a public deed.
My brother received an apartación. Does that increase the forced share of the rest of us?
No. He is no longer a forced heir, but he still counts when the share is divided, so each of the others' shares does not grow. What he received is added to the estate to calculate those shares and, if not enough is left to pay them, the apartación can be reduced after legacies and gifts.
Is a private document in which my brother renounces our parents' estate valid?
No. In Galicia a renunciation of the forced share made before the parent dies is void unless it is done by apartación, and apartación requires a public deed. That paper takes no rights away from your brother. If the family wants the matter settled, the parent must grant the apartación before a notary.
Can my father cancel the apartación if we fall out?
No. Apartación is irrevocable and a later falling-out does not undo it. It can only be challenged on the grounds that apply to any contract, such as the parent lacking capacity when signing or consent being vitiated. If a parent wants to keep room to change their mind, the tool is the will, which can be revoked at any time.
Does my father have to attend the notary in person?
Not necessarily. The law allows it to be granted through a special power of attorney containing the essential terms, which assets are given and to whom. A general power is not enough. We draft that power with the deed the notary will later authorise in mind.
If my father dies without a will, does the child who received an apartación inherit?
It depends on the deed. Apartación removes the forced share but does not exclude the child from intestate succession unless this was expressly agreed. If it was not, that child inherits alongside the siblings in equal shares, and what they received is brought into account unless the parent waived that in the deed.