Generational transition and transfer “mortis causa” of family business in Spanish Law

Ignacio Gallego Domínguez

Keywords

Family business; succession “mortis causa”; will, forced heirship; inheritance tax.
 

Abstract

The most crucial challenge for family businesses is the transfer to the next generation. It affects both the leadership and the ownership of the enterprise, whether individual or corporate. Transferring the ownership of the organization at the time of the death of the owner, raises important questions in the Spanish Civil Code system, in which inheritance contracts are not allowed, and there are rigid forced heirship provisions, which limit the testator's freedom. The correct and appropriate transmission of the family business requires adequate planning, which must lead to write a will -to avoid intestacy-, and make use of those special mechanisms that contemplate the payment of the forced heirship with money outside the state, as well as those others allowed in Spanish law that help to channel the phenomenon. Succession planning also requires being vigilant to comply with the legal requirements for obtaining benefits in inheritance tax.