What is collation of an estate (colación hereditaria)?
Collation of an estate is an institution of succession law governed by Articles 1035 to 1050 of the Spanish Civil Code. Its purpose is to ensure equality among forced heirs where one of them received assets or money from the deceased during their lifetime.
The law presumes that gifts made by parents to their children are an advance on their future inheritance, unless the donor expressly stated their wish to exclude them from collation.
Therefore, when a person dies and several children share in the inheritance, it may be necessary to count the value of lifetime gifts in order to determine what ultimately corresponds to each heir.
What is collation for?
Collation seeks to avoid inequality among co-heirs. Without this mechanism, a child who had received significant sums of money, property or company shares during the deceased’s lifetime could also receive the same inheritance share as their siblings, gaining a considerable economic advantage. Collation restores the balance among heirs and ensures a fairer distribution.
When does collation apply?
For the obligation to collate to arise, several requirements must be met:
- There must be several forced heirs: collation makes sense where several descendants or forced heirs share in the inheritance.
- One of them must have received a lifetime gift: money, property, shares, business interests or other assets.
- The donee must share in the inheritance: only someone who, in addition to receiving the gift, acts as an heir must collate.
- The deceased must not have expressly waived collation: the testator may state in the deed of gift or in the will that the gift is made with a waiver of collation.
Who can request collation?
Collation may be requested by any of the forced co-heirs sharing in the succession. It is not a right of third parties outside the inheritance, but a power belonging to the other forced heirs who might be harmed.
Which assets are collatable?
As a general rule, gifts made by the deceased to forced heirs are collatable. However, there are important exceptions: ordinary education and training expenses, customary gifts (birthdays, weddings), medical and illness expenses, and support to become professionally established, where the deceased so provided.
How is collation calculated?
The operation consists of adding the value of the gifts made to the estate existing at death. The inheritance shares of all co-heirs are calculated on that total mass. The heir who received a gift then has the value already received deducted.
Practical example: a father dies leaving three children and an estate of €600,000. Years earlier he had gifted €150,000 to one of them (without waiver of collation).
- Total mass: 600,000 + 150,000 = €750,000
- Share per child: €250,000
- The child who received the gift receives: 250,000 − 150,000 = €100,000 in addition
- The other two children receive €250,000 each
What is a waiver of collation?
A waiver of collation allows a gift made to an heir not to be taken into account when distributing the inheritance. It may be set out in the public deed of gift or in the will. However, the waiver cannot impair the forced shares of the other heirs.
Collation and succession planning
Collation is one of the most frequent causes of disputes between siblings. Lifetime financial help, gifts of property or the transfer of family businesses often generate significant disagreements where there is no proper succession planning. It is therefore advisable to study in advance the consequences of any gift and to determine expressly whether or not a waiver of collation is desired.
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