In the Basque Country, since the 2015 reform, civil law offers almost total autonomy in determining the fate of inheritances. This regulation applies to all individuals with Basque civil residency, marking a clear distinction from the Civil Code applicable in the rest of Spain.
To benefit from this right, one must possess Basque civil residency, which is acquired by birth in the Basque Country, by residing continuously for ten years without stating otherwise, or by requesting it after two years of residency. This specific legal framework was extended to the entire Basque territory from 2015, unifying what was previously applied only in certain areas.
It gives much more freedom to the person granting the will.
The main difference is that Basque law grants greater freedom to the testator. While the Spanish Civil Code mandates reserving one-third of the inheritance (the legitimate portion) for forced heirs, this obligation does not exist in Euskadi. It is possible to allocate all assets to a single child or even a grandchild, and the other heirs cannot challenge this decision.
This action is known as 'apartamiento' (exclusion). Unlike disinheritance in common law, which requires very serious and justified reasons, such as an attempt against life, 'apartamiento' does not require any justification. Simply by not naming certain individuals in the will, or even explicitly stating their exclusion, these persons will not inherit anything. Furthermore, the decision cannot be challenged.
Basque regional law also includes tools such as the testamentary power, which allows a person to delegate to their spouse (by naming them commissioner) the authority to distribute their assets after death. Another key figure is the succession pact, an agreement signed during the lifetime of the testator and their heirs. Its objective is to provide stability to family assets and avoid conflicts, as the parties know in advance which assets they will receive. Additionally, it offers significant tax benefits: the first 400,000 euros received through this method are exempt from taxation.
Regarding wills drafted before 2015, it is crucial to update them. A ruling by the High Court of Justice of the Basque Country in 2024 illustrated how a will from before 2015, which left four out of five children the “strict legitimate portion,” was successfully challenged by the fifth child after the testator's death post-2015. The court ruled in favor of the fifth child, leaving the other four siblings without any assets. This case underscores the importance for Basque citizens to be aware of their rights and the tools offered by their regional legislation.
