Rules of intestacy in Spain
If Spanish law applies, in the event of being no will, when the will is null and void or has subsequently become invalid, legal intestate succession regime applies. For most of Spain, the law can be found in the Spanish Civil Code (1889), but some of the Autonomous Communities (six out of seventeen) have their own private law.
The Spanish Civil Code therefore establishes the general law, and articles 930 and follows establish a list of beneficiaries, identifying three categories of heirs: relatives (descendants, ascendants and collaterals), the surviving spouse and the State, and they are arranged in hierarchy of classes, which is summarized below:
- Descending direct line.
- Ascending direct line.
- Collateral relatives
- The State.
Under the principle of proximity of degree, the closest relatives exclude remote relatives (for example, a child excludes a grandchild and a parent excludes a grandparent), with the exception of the right of representation, in virtue of which the descendants of a predeceasing heir occupy that heir’s position. Also, relatives within the same degree inherit equally.
- The primary claim to inherit lies with the direct descendants, without any distinctions resulting from gender, age or filiation of the deceased, with no limitation of degree, but subject to a usufruct of 1/3 of the estate to the surviving spouse (if any). Children inherit the whole estate in equal shares and in their own right, but grandchildren and other descendants can only inherit by representation, taking the share which would have fallen to a predeceasing parent.
- In the absence of children and descendants of the deceased, his ascendants shall inherit, subject only to a usufruct of half of the estate in favour of surviving spouse. Father and mother shall inherit in equal shares, and in the event that only one of the parents survives, the surviving one shall inherit the whole estate from his child. In the absence of parents, the ascendants closest in degree will succeed. There is no limit of degree in the ascending line, nor is there representation in this case.
- When the deceased passes away without ascendants or descendants, the spouse inherits all of the deceased’s property. To be heir as a spouse, it is necessary to have been still married at the time of the death, this way a claim on intestacy is defeated by nullity, divorce and separation, whether judicial or de facto.
- In the absence of all of the above mentioned, the intestate estate passes to collateral relatives, beginning with siblings, who inherit equally, but also with the children of a predeceasing sibling taking the place of their parent.
- Finally, and in absence of descendants, ascendants, spouse or siblings, the deceased’s estate passes to the State, or in the case of Autonomous Communities with civil competence in this matter, to those Communities.
Spanish Civil Code