Beneficiaries and children who give the right to apply the deduction

A. Beneficiaries of the deduction

Article 81 of the IRPF Law regulates the deduction for maternity that reduces the differential rate of IRPF and that the following people may apply:

1. Women with children under three years of age with right to the application of the minimum for descendants who meet any of the following requirements:

1. That at the time of birth of the minor receives contributory or assistance benefits from the unemployment protection system.

2. That they are registered in the corresponding Social Security or Mutual Fund regime:

   • at the time of birth of the minor or

   • at any time after birth with a minimum period of 30 days of contributions.

     For the purposes of calculating the minimum period of 30 days of contributions, the days of contributions prior to birth, foster care or adoption will be taken into account, and it is necessary that registration in the corresponding Social Security or mutual insurance scheme takes place after birth, foster care or adoption. 

Note: where in the 2022 tax period the parent would have been entitled to the maternity deduction and the child aid supplement provided for in Law 19/2021 in relation to the same descendant, the maternity deduction may continue to be applied as of January 1, 2023, even if one of the parents is entitled to the aforementioned supplement with respect to said descendant, provided that the rest of the requirements required as of January 1, 2023, referred to above, are met.

2. In the event of the death of the mother or when custody is exclusively attributed to the father or, where appropriate, to a guardian , provided that they meet the requirements set forth in article 81 of the Personal Income Tax Law , discussed above, the latter will have the right to the pending deduction.

Therefore, in this case, the surviving parent or guardian with children under three years of age entitled to apply the minimum for descendants, who at the time of the birth of the minor receives contributory or assistance benefits from the unemployment protection system, or who at that time or at any time thereafter is registered with the corresponding Social Security or mutual fund scheme with a minimum period, in the latter case, of 30 days of contributions, will be entitled to the deduction for pending maternity, that is, the one corresponding to the time remaining until the child or ward reaches three years of age.

In the event that there are several taxpayers entitled to the maternity deduction for the same ward or foster child or minor under their care and custody for pre-adoption cohabitation or by court order , the amount must be divided equally between them.

Note: With the sole exception of the cases indicated in letter b) above, the maternity deduction corresponds entirely and exclusively to the mother, provided that she meets the requirements indicated to be entitled to it. Consequently, in no case other than those mentioned will the application of the deduction by the father be admissible, nor will the distribution or apportionment of the same between the father and the mother.

B. Children who entitle the application of the deduction

• Natural children , from the month of their birth until the month before they turn three years of age, both inclusive.

• Adopted children and minors linked to the taxpayer by reason of guardianship or permanent foster care or delegation of guardianship for pre-adoption cohabitation.

Remember : may be applied from January 1, 2023 the deduction for children under 3 years of age who were born before that date provided that they entitle the person to apply the family minimum for descendants, and one of the requirements demanded by article 81 in its current wording is met.

In cases of adoption or permanent foster care or delegation of guardianship for cohabitation , the deduction may be applied, regardless of the age of the minor, during the three years following the date of registration in the Civil Registry.

When registration is not necessary, the deduction may be applied during the three years following the date of the judicial or administrative resolution declaring it.

When the adoption of a minor who has been in a permanent foster care regime, with delegation of guardianship for cohabitation takes place or when a change occurs in the foster care situation, the deduction will be applied during the time remaining until the maximum period of three years previously mentioned is exhausted.

In cases of guardianship, the guardian will be entitled to the amount of the deduction corresponding to the time remaining until the ward reaches three years of age.

Note: The deduction is not applicable in the case of grandchildren and other descendants by consanguinity other than children, nor in the case of simple, urgent or temporary foster care, nor in the case of minors for whom custody and guardianship is granted by court order.