Inheriting in the Basque Country: What You Need to Know

Planning and managing an inheritance in the Autonomous Community of the Basque Country requires a detailed understanding of its specific legal system: Basque Civil Law. Our experts, Aitor Porres Soriano and David Niño Gorritxo, break down the fundamental aspects of this regulation.

 

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Basque Foral Law and Inheritance

Law 5/2015, of June 25, on Basque Civil Law, in force since October 3, 2015, unifies civil legislation in the historical territories of the Basque Country, repealing previous legislation. Supplementary rules, for matters not covered by law or foral custom, are provided by the Civil Code.

What are the main inheritance-related novelties introduced by Law 5/2015?

Scope of Application of Law 5/2015

Two key points define the law’s application in succession matters:

1. Territorial scope: Applies throughout the Autonomous Community of the Basque Country.
2. Personal scope: Applies to all individuals with Basque civil residence (vecindad civil vasca), a concept introduced and regulated by the law, as established in Article 10.

To ensure legal certainty, Article 11 requires that public instruments executed in the Basque Country indicate the grantor’s Basque and local civil residence, as well as the economic regime of their marriage or registered partnership.

Equality Between Marriage and Registered Partnerships

The law fully equates the inheritance rights of a surviving spouse and the surviving member of a registered partnership, provided the partnership is properly registered in the Register of Registered Partnerships.

Particularities of Inheritance in the Basque Country

Succession may be arranged in three ways, according to Article 18: by will, by succession pact, or, failing that, by law (intestate succession).

Forms of Making a Will in the Basque Country

In addition to common forms under the Civil Code, Basque Civil Law contemplates specific instruments:

• Testamento hilburuko / Will in danger of death: Allows a person in imminent danger of death to make a will before three qualified witnesses, without the need for a notary.

• Joint will: Two people, whether or not related, may dispose of their assets in a single notarial instrument.

• Testamentary power (fiducia sucesoria): The testator may appoint one or more persons, called “commissioners,” to order their succession, appoint heirs, and distribute assets after their death. Regulated in Article 43.

• Succession pact: Through a public deed, a person may dispose of their assets mortis causa, either from the moment of the pact or upon death. Unlike a will, this is a bilateral act that can only be modified by agreement between the parties. Its key advantage is that fiscal rules applicable to inheritance apply immediately, without waiting for the testator’s death. Regulated, among others, in Article 100.

 

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Heir’s Liability for Inherited Debts

The law establishes a limited liability regime: the heir is only responsible for the debts and charges of the inheritance up to the value of the inherited assets.

Moreover, creditors and legatees have a “right of separation,” allowing them to request an inventory so that the deceased’s assets are preferentially allocated to satisfy their claims, protecting them from the heir’s personal creditors.

Intestate Succession: How Is an Inheritance Distributed in the Basque Country?

When there is no will or succession pact, the law establishes the following order of inheritance for non-trunk assets:

1. Children or descendants: Inherit by right (children) or by representation (grandchildren and other descendants), as per Article 113.
2. Surviving spouse or registered partner: In the absence of descendants, inherits with priority over ascendants, according to Article 114.
3. Ascendants: Inherit if the previous categories are absent, according to Article 115.
4. Collateral relatives: Siblings, nieces/nephews, and, failing that, the nearest relatives up to the fourth degree, according to Article 116.

How Does Legitimate Share Work in the Basque Country?

The legítima is a portion of the inheritance that the testator must transmit to the legal heirs.

Descendants’ legítima: One-third of the inheritance. Article 48 allows the testator to choose one or more descendants to receive this share, potentially excluding others explicitly or implicitly.

Surviving spouse or registered partner: This consists of a usufruct right. Its amount depends on:

• With descendants: usufruct of half of the estate.
• Without descendants: usufruct of two-thirds of the estate, which can be commuted into a lifetime annuity or a lump sum, per Article 53.

Additionally, the surviving spouse or registered partner retains a right of habitation in the family or partnership home while widowed, without entering a new marital or registered partnership, and if no non-marital child exists.

Marital Economic Regime in the Basque Country

The marital property regime is determined by the spouses’ prenuptial agreements. If no agreement exists, Article 127 establishes the default as community property, except for spouses with local civil residence in Bizkaia, Aramaio, or Llodio, where the foral property communication regime applies.

✅​ Inheritance Management in Bizkaia

Do you have issues with distributing a family inheritance? Do you need help managing an inheritance in Bizkaia?

From our offices in Bizkaia, we offer a comprehensive inheritance service, including:

• Advice and support throughout the inheritance process.

• Obtaining death certificates and certificates of last wills.

• Acceptance and partition of inheritance.

• Ab intestato heir declaration proceedings.

• Settlement of Inheritance Tax.