Renouncing an Inheritance in Spain: the Legítima Does NOT Pass to the Grandchildren — It Accrues to the Other Heirs (STS 1029/2026)
If a child renounces the inheritance, does their share automatically pass to the grandchildren under the will's vulgar-substitution clause? The Spanish Supreme Court says no in judgment 1029/2026 of 25 June (ECLI:ES:TS:2026:2869): the repudiated strict *legítima* accrues to the remaining forced heirs by their own right (art. 985.II Civil Code), while substitution only operates over the improvement and free-disposal thirds. "Tacit improvement" cannot be used to compensate the substitutes either. Full analysis, case facts, worked example, tax warnings and downloadable judgment.
Introduction: Supreme Court judgment 1029/2026 clears up a costly misconception
Spanish Supreme Court (First Chamber) judgment no. 1029/2026 of 25 June (cassation appeal 9033/2021, reporting judge Parra Lucán, ECLI:ES:TS:2026:2869) settles one of the most misunderstood aspects of Spanish succession law: when a child renounces the inheritance, do the grandchildren automatically step into their parents' shoes as forced heirs?
The short answer is no — at least not for the *strict legítima* portion. If you are considering renouncing an inheritance for tax reasons, or your will includes a *vulgar substitution* clause on the assumption that it guarantees your grandchildren's forced-heirship rights, keep reading: the practical rules are more complex than they seem, and a misreading can completely rewrite the distribution of your family estate.
📄 Full judgment available for download at the end of this article (official CENDOJ PDF, subscribers only).
1. The facts: a Seville estate, a substitution clause and two renouncing children
The deceased, a widow, died on 28 October 2014 leaving a notarial will dated 2 March 2009. She had two living sons and three grandchildren, the children of a predeceased son. Her will:
- Clause three: bequeathed the improvement and free-disposal thirds in equal shares to her two living sons.
- Clause four: in the remainder (i.e. the strict *legítima*), appointed as heirs in equal shares her two sons and the three grandchildren of the predeceased son, "*substituted by way of vulgar substitution, both in the legacy and in the appointment of heirs, by their respective descendants*".
On 23 October 2015 both surviving sons executed a public deed of pure and simple renunciation of their mother's estate. The court-appointed *contador-partidor* (estate distributor) took the view that their descendants substituted them in the free-disposal and improvement thirds, but not in the strict *legítima*, which increased the share of the predeceased son's children.
The first-instance court (Court of First Instance no. 25 of Seville) and the Seville Provincial Court (Section 8, judgment of 4 October 2021) disagreed, invoking *favor testamenti*: since the grandchildren were called as substitutes and not by right of representation, the substitution should also cover the strict *legítima*. One of the granddaughters appealed to the Supreme Court, alleging breach of arts. 813 and 985.II CC.
> The decisive question: does a testamentary vulgar-substitution clause displace the mandatory rule of art. 985.II CC over the renounced *legítima*?
The Supreme Court allowed the appeal on 25 June 2026 and answered no.