Who inherits if there is no will, current legislation
In the field of inheritance law, the absence of a will raises many questions about who is entitled to inherit. In Spain, when a person dies without leaving a will, their inheritance is distributed in accordance with the Civil Code. Below we explain the rules governing this process, analysing the different situations and the order of succession.
Order of intestate succession
Intestate succession is the process by which the inheritance of a person is distributed among his or her closest relatives in accordance with the law, this process is activated when there is no valid will or when the will does not provide for all the assets. The Spanish Civil Code establishes an order of priority to determine who inherits:
- Descendants
The first priority in intestate succession is given to the descendants of the deceased, i.e. the children and, failing that, the grandchildren. The inheritance is divided equally among the children. If one of the children has predeceased the testator, his or her children (the grandchildren of the deceased) will take his or her place and receive the share that would have been due to their father or mother.
- Ascendants
If there are no descendants, the inheritance passes to the ascendants, i.e. to the parents of the deceased. If both parents are alive, the inheritance is divided equally. If one of them is deceased, the survivor inherits the whole. If there are no parents, the inheritance is divided between the grandparents, with the paternal and maternal grandparents dividing the inheritance in half.
- Spouse
In the absence of descendants and ascendants, the surviving spouse is next in line of succession. It is important to note that the spouse must be legally married to the deceased at the time of death and not legally separated. The spouse receives the entire inheritance if there are no descendants or ascendants.
- Siblings and nephews and nieces
If there are no descendants, ascendants or spouse, the siblings of the deceased are next in line to inherit. The inheritance is divided equally between the siblings, if one of the siblings has died before, his or her children (the deceased’s nephews or nieces) will receive the share that would have been due to their father or mother.
- Other relatives
If there are no siblings or nieces and nephews, the inheritance passes to the collateral relatives up to the fourth degree, i.e. uncles, aunts, uncles and cousins of the deceased. The inheritance is divided equally among relatives of the same degree.
- The State
Ultimately, if there are no relatives up to the fourth degree, the inheritance will pass to the State. This scenario is very rare, as there is usually a relative entitled to inherit.
Legitimacy in intestate succession
In Spain, the concept of “legítima” guarantees a minimum share of the inheritance to certain forced heirs, mainly descendants, ascendants and the spouse. Even in the absence of a will, the law protects the rights of these heirs, ensuring that they receive a share of the inheritance.
Descendants
The children of the deceased are entitled to the reserved portion, which is calculated as two thirds of the inheritance. One third is divided equally among all children, and the other third can be used to improve the inheritance of one of the descendants (e.g. a child or grandchild).
Ascendants and spouse
If there are no descendants, the ascendants and the spouse are entitled to the reserved portion. In this case, the ascendants are entitled to half of the inheritance if there is no spouse, or to one third if there is one. The spouse is entitled to the usufruct of a part of the inheritance, which varies according to the existence of other heirs.
Intestate succession proceedings
In order to process an intestate succession, a specific legal procedure must be followed, which follows the following process.
- Declaration of heirs
The first step is to obtain a declaration of heirs, an official document that recognises the persons entitled to inherit. For descendants, ascendants or spouses, this declaration is made before a notary. If this possibility does not exist, a judicial procedure is carried out to determine the heirs.
- Inventory and valuation of the inheritance
Once the heirs have been identified, an inventory of the deceased’s assets, rights and debts is drawn up. This inventory is essential for valuing the inheritance and calculating the share that corresponds to each heir.
- Partition of the inheritance
The partition of the inheritance consists of dividing the assets among the heirs. This process can be agreed by mutual agreement between the heirs or, in case of conflict, be brought before a judge. The law establishes rules to ensure an equitable distribution, respecting the legitimate rights of the forced heirs.
- Taxes and formalisation
Finally, the heirs must pay the Inheritance and Gift Tax and formalise the acquisition of the assets, such as registering properties in the Land Registry. The deadline for paying the tax is six months from the date of death, with the possibility of extension.
Intestate succession is a legal mechanism that guarantees the distribution of the inheritance of a person who has died without a will, following an order of priority established by law. In Spain, the Civil Code regulates this process, protecting the rights of the forced heirs and ensuring a fair distribution.
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