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V2747-16 15 June 2016 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · legítima estricta

Inheritance and gift tax must be paid if heirs receive assets exceeding their statutory share

Consultants inquired whether the allocation of assets exceeding the strict statutory share provided for in a will constitutes merely a partition of the estate. The DGT ruled that if the excess is motivated by a gratuitous intent, it constitutes a gift from the other siblings to them.

The question raised

Taxation of the transaction.

The DGT's ruling

If the assets allocated to the applicants exceed the strict forced heirship portion assigned by the testator, two distinct legal transactions occur. They must settle Inheritance Tax for the portion corresponding to the inheritance and Gift Tax for the excess received from their siblings. They would only be taxed solely for succession if the allocated assets did not exceed the strict forced heirship.

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