If you have a sibling with a disability and you are about to deal with an inheritance, whether your parents’ estate or that of another close relative, it is normal for questions to arise that wouldn’t come up in a regular sibling distribution. Who signs on their behalf if they can’t do it themselves? Are they entitled to the same share or to more? How is their tax bill calculated? And could receiving an inheritance cause them to lose the benefits they currently receive?
A quick note before we begin: if what you really need is to understand how an inheritance is shared between siblings when none of them has a disability, we cover that in our article on inheriting from a sibling. Here we focus on the scenario where one of the siblings does have a disability, drawing on the cases we handle every week at our inheritance law firm.
We will explain how to approach the distribution, what changed with Law 8/2021 (this matters, because the Spanish word “incapacitado” no longer means what it did a few years ago), and the practical steps when there is a will and when there isn’t.
Yes, a person with a disability can inherit (and what changed in 2021)
Let’s start with the most basic question we get at the firm: a person with a disability inherits exactly the same as anyone else. Disability does not affect the right to inherit. It only affects the way that person can accept, manage and administer what they receive.
Until 2021 it was common for people with disabilities to be “legally incapacitated” and represented by a guardian in every patrimonial matter. Law 8/2021 turned that model on its head. After the reform, no one is declared incapable: instead, support measures are established, tailored to each person and based on their will and preferences.
If you come across the word “incapacitated” in old documents or outdated forms, that is simply terminology that hasn’t been updated. The correct legal figure today is the person with a disability and assigned support measures, whether that is curatorship, a de facto guardian, or any other figure provided for in the Spanish Civil Code. This matters because, even though many people still search for “inheritance with an incapacitated sibling”, what you really want to know is how the distribution works when one of the siblings has formally established support measures in place.
How an inheritance is shared with a sibling with a disability
The distribution follows the general rules of Spanish succession law, with two important nuances: what the will says (if there is one), and whether court authorisation is needed for your sibling to accept and manage their share.
When there is a will
If the testator, usually your father or mother, left a will (the most common format is the open will signed before a notary), that document prevails. The expressed wishes are respected as long as they comply with legal limits: a forced heir cannot be deprived of their reserved share (the legítima).
In well-drafted wills you will often find three types of clauses in favour of the child with a disability:
- Improvement of the legítima: the Spanish Civil Code allows parents to allocate the entire “third of improvement” to the child with a disability. This significantly increases their share without affecting the strict reserved share due to the rest of the siblings.
- Residual trust (fideicomiso de residuo): the child with a disability receives the assets in full ownership and, when they pass away, whatever is left of that estate goes to their siblings. It is a figure designed to protect them during their lifetime without the family wealth leaving the family.
- Testamentary administrator: the testator appoints someone they trust (whether a sibling or not) to manage the assets received by the child with a disability.
If the will includes any of these provisions, the siblings are bound to respect them. They can only be challenged if they breach the reserved share of one of the heirs.
When there is no will
Without a will, intestate succession applies. The heirs are appointed by the Spanish Civil Code following a strict order, and the share between those called to inherit is divided in equal parts. If you want a deeper look at how this scenario works in general, we explain it in detail in our article on the inheritance process in Spain without a will.
In a typical case, both parents pass away and their children inherit in equal parts, one of them with a disability. Each one is entitled to exactly the same percentage. The difference lies in how the sibling with a disability participates in signing the deed of partition:
- If they have full legal capacity, they sign themselves, like any other heir.
- If they need support to make patrimonial decisions, their curator or whichever support figure has been formally recognised will act for them.
- If they don’t yet have any formal support and they need it, you will need to apply to the court for authorisation to accept the inheritance and, where applicable, to sell assets or manage the estate. The Public Prosecutor’s Office always intervenes when a person with a disability is involved, ensuring the distribution is favourable to them.
Practical example with figures
Imagine your father passes away and leaves a net estate of €240,000, to be shared between three children: Marta (45), Luis (42) and Ana (38), who has a recognised disability of 65%. Your mother had passed away earlier and your father did not leave a will.
Each sibling inherits €80,000. Marta and Luis accept and sign with no further formalities. Ana, who is unable to manage her estate by herself, needs her curator (Marta in this case) to sign the acceptance with prior court authorisation. The judge and the Public Prosecutor’s Office check that the operation benefits her.
From a tax perspective, all three are taxed under Group II of the Spanish Inheritance Tax, but Ana applies the disability reduction of up to €150,253.03 against her taxable base, which in her case brings the tax bill to zero or very close to it, depending on the autonomous community.
If your father had left a will improving Ana’s share with the full third of improvement, the figures would change: Ana would receive €80,000 + €80,000 (full improvement) = €160,000, and Marta and Luis would split the remaining €80,000 between them. Wanting to give Ana extra protection translates into a larger estate, managed through the relevant support figure.
| Aspect | With a will | Without a will |
|---|---|---|
| Who decides the distribution | The testator | The Spanish Civil Code |
| Share for the sibling with a disability | May be larger (improvement, residual trust) | Equal to the other siblings |
| Protection figures | May already be in place (testamentary administrator) | Must be set up if they don’t yet exist |
| Court involvement | Only if the heir with a disability cannot sign | Common: declaration of heirs and court authorisation if no support is in place |
| Timeline | Faster if the will is well drafted | Slower (declaration of heirs needed first) |
| Risk of conflict | Low if the clauses are clear | Higher, especially if there is disagreement on asset valuation |
Legal figures that protect the sibling with a disability
When your sibling with a disability cannot sign the partition themselves, they don’t get left out of the distribution. There are several figures that act on their behalf, and each one fits a different scenario.
Representative curatorship
This is the most common figure when the person with a disability cannot make significant patrimonial decisions on their own. The curator (often another sibling or a close family member) acts on behalf of the sibling with a disability for those acts where they need support, including the signing of the deed of partition.
Curatorship is established by court ruling. The judge sets out exactly which acts require representation and which don’t.
De facto guardian
If your sibling lives with you or with another relative who looks after them on a daily basis without having formally requested curatorship, that person is the de facto guardian. The figure is valid and sufficient for many everyday acts.
For an inheritance, the de facto guardian can act provided the act is clearly beneficial, but it is advisable for the court to endorse the decision when the assets are significant or when a property has to be sold.
Court-appointed defender
This is a delicate point. If you are at the same time an heir and the legal representative of your sibling with a disability, there is an obvious conflict of interest: you would be signing in your own interest and in theirs at the same time.
In that case, the judge appoints a court-appointed defender, someone unconnected with the inheritance, to represent your sibling’s interests exclusively. It is a safeguard designed to prevent abuse, not a suspicion towards you as a sibling.
Testamentary administrator
This figure is not appointed by the judge but by the testator in their will. Your parents can name a person they trust to administer the assets received by the child with a disability throughout their lifetime, or until they no longer need that support.
If your father or mother named a testamentary administrator in their will, that person plays a central role in how the assets your sibling inherits are managed, including the home, the bank accounts and any investments.
Tax aspects: reductions and Spanish Inheritance Tax
The tax side of an inheritance with a sibling with a disability deserves a section of its own, because it can bring the bill down to zero or, if no one reviews the tax position in advance, lead to an unnecessary expense.
Reductions by degree of disability
State legislation establishes two tiers of reduction on the taxable base:
- Up to €47,859.59 if your sibling has a recognised degree of disability between 33% and 65%.
- Up to €150,253.03 if the degree of disability is 65% or higher.
These amounts are not a deduction from the final tax bill: they are subtracted directly from the value of what your sibling inherits before the tax is calculated. In medium-sized estates, the €150,253 reduction brings the taxable base very close to zero or directly to zero.
Differences by autonomous community
Spanish Inheritance Tax is a regional tax, and each autonomous community applies its own bonuses on top of the state reductions. The difference between living in one community or another can be enormous.
In the Valencia Region, relevant for many families in Torrevieja, Orihuela Costa and Alicante, people with a disability enjoy regional bonuses of up to 99% on the final tax bill when they inherit from parents or other ascendants, which in practice makes the tax merely symbolic.
In Andalusia and Madrid the bonuses for people with a disability also reach 99% in many cases. In Asturias or Aragón the bonuses are smaller and the bill can be substantial.
Before processing the inheritance, it is worth checking where the deceased was resident, because Spanish Inheritance Tax is paid based on their community of residence, not the heir’s.
Watch out for losing public benefits
This is one of the points that causes the most family friction and is rarely anticipated. If your sibling receives a non-contributory pension, the Spanish Minimum Living Income (IMV), or any regional dependency benefit, receiving a significant estate can cause them to lose that benefit by exceeding the income or asset thresholds.
There are legal arrangements that allow them to inherit without losing the benefit, and the most widely used is the protected estate regulated under Law 41/2003. It allows assets to be set aside for your sibling with a disability with tax advantages, without those assets being counted as their own when the benefits are calculated, within certain limits.
If your parents are still planning their will, this is a conversation worth having now rather than later.
What to do if the siblings can’t reach an agreement
Spanish succession law sets out an objective framework, but disputes between siblings are common, especially when there is disagreement about whether the distribution treats the sibling with a disability fairly, or about how the assets should be valued.
The fastest and least costly route is negotiation, with a lawyer who can mediate and propose a reasonable distribution. If there is no agreement, the next step is to appoint a court-partitioner (chosen by mutual agreement or by the court) who values the assets and proposes the partition. When the dispute can’t be solved by either of these routes, the only option left is judicial division: the court will partition the estate in accordance with the law, but the process is long, expensive and leaves lasting family scars.
My advice, after handling many of these cases, is always the same: exhaust the negotiated routes before setting foot in a courtroom.
Practical steps to process the inheritance
At our firm, when a family comes to us with an inheritance that involves a sibling with a disability, we follow a clear order of work to avoid surprises:
- Initial paperwork: death certificate, certificate of last wishes (Certificado de Últimas Voluntades) and, if there is one, an authorised copy of the will. If there is no will, we initiate the intestate declaration of heirs. We have set out the essential documentation for an inheritance in Spain in another article on the blog.
- Inventory and valuation: we list the assets and debts, value each item with realistic criteria, and review the recognised degree of disability of your sibling and the support figures already in place or those that need to be created.
- Tax review: we calculate the Spanish Inheritance Tax payable in the autonomous community where the deceased was resident and check whether receiving the inheritance can affect any public benefits your sibling currently receives.
- Application for court authorisation if required: if your sibling needs support to accept the inheritance and doesn’t yet have it formally recognised, we file the application with the court. The Public Prosecutor’s Office will be involved in the proceedings.
- Partition proposal: we draft a deed of partition with clear figures and solutions for your sibling’s share (improvement, administrator, protected estate, conversion of usufructs where applicable).
- Signing at the notary and registrations: once the partition is accepted and the necessary authorisations have been obtained, we sign the deed, settle the taxes and arrange the entries at the Land Registry and the changes of ownership.
If the inheritance includes properties that you intend to sell afterwards, it is worth applying to the court for the sale authorisation in the same application. Doing it in two separate stages multiplies the timelines and the costs.
Frequently asked questions
Can my sibling with a disability renounce the inheritance?
Yes, but the renunciation has nuances. If they have full legal capacity, they sign the renunciation before a notary with no further formalities. If they need support, the renunciation requires court authorisation: the judge will assess whether renouncing is genuinely in their best interest.
And if they want to accept but cannot sign themselves?
They accept through their curator or through whichever support figure has been formally recognised, with court authorisation where applicable. If they don’t yet have any formal support and they need it, it must be set up first (or you can request a court-appointed defender for that specific inheritance).
What if I am the only “able” heir and my sibling needs support?
If you are their curator and at the same time an heir, there is a conflict of interest, and the judge will appoint a court-appointed defender to represent them solely for this inheritance. It is a routine and reasonably quick procedure, designed to protect both your sibling and you.
How long does the process take if court authorisation is involved?
It depends on the court, but between filing the application and the order approving the partition you can expect 4 to 8 months. It is worth planning for this, especially because of the tax deadline: Spanish Inheritance Tax must be settled within 6 months of the date of death, with a possible extension of another 6 months.
Can the inheritance cause my sibling to lose their non-contributory pension?
It can, if the inheritance pushes them above the asset or income thresholds that grant entitlement to the non-contributory pension. The solutions usually involve structuring the inheritance through a protected estate or, in some cases, planning a life annuity. It is worth doing the maths before accepting.
What happens when my sibling with a disability passes away? Who inherits from them?
If they received the assets through a residual trust, whatever remains goes back to their siblings as set out in the will. If they received the assets in full ownership without that clause, their estate will go to their legal heirs (spouse if any, descendants, ascendants, siblings), following the order set out in the Spanish Civil Code.
Every case has its own nuances
Every inheritance involving a sibling with a disability has nuances that only become visible once you look at the specific case: the recognised degree of disability, whether or not there is a will, where the deceased was resident, what the estate consists of, and which public benefits are at stake. Generalising leads to costly mistakes, especially on the tax side.
If you need someone to review your case and guide you from the very first moment, at López Morueco Abogados we accompany you throughout the entire process, including when your family lives across different autonomous communities or abroad.
