Intestate Succession in Spain: Complete Guide to Inheritance Without a Will

Intestate Succession in Spain: Complete Guide to Inheritance Without a Will

When a person dies without having made a will, the so-called intestate succession (sucesión ab intestato) is triggered. In Spain, this situation is more common than one might expect: approximately one-third of deaths occur without a valid will. The Civil Code (Arts. 912-958) establishes a strict order to determine who is entitled to inherit and in what proportion.

This guide provides an in-depth analysis of intestate succession under Spanish common law, the rights of each group of heirs, tax implications, and the procedures required to formalize the inheritance.

When Does Intestate Succession Apply?

Article 912 of the Civil Code establishes that intestate succession takes place:

1. When a person dies without a will or with a null will or one that has subsequently lost its validity.
2. When the will does not contain appointment of an heir for all or part of the estate. In this case, intestate succession applies only to the assets not disposed of.
3. When the condition imposed on the appointment of heir fails, or the heir dies before the testator, or renounces the inheritance without a substitute and without the right of accretion applying.
4. When the appointed heir is incapable of inheriting.

It is important to note that intestate succession can coexist with testate succession: if the will only disposes of part of the estate, the remainder is distributed according to the rules of intestate succession (Art. 658 CC).

Difference from Testate Succession

In testate succession, the deceased expresses their wishes regarding the distribution of their assets, subject to forced shares (legítimas). In intestate succession, the law fills the gap left by the absent will, establishing an order of priority based on kinship, marriage, and ultimately, the State.

Order of Intestate Succession: Who Inherits and How Much

The Civil Code establishes a strict order of priority in Articles 930 to 958. Each group is called to inherit only when no heirs exist in the preceding group or all have renounced.

First order: Children and descendants (Arts. 930-934 CC)

The deceased's children inherit in equal shares (Art. 932 CC). If a child has predeceased the decedent, their descendants (grandchildren) inherit by right of representation (Art. 934 CC), dividing among themselves the share that would have belonged to their parent.

• Example: A person dies intestate leaving three children (A, B, and C). B predeceased the decedent leaving two children (grandchildren). A receives 1/3, C receives 1/3, and B's two children each receive 1/6.

The surviving spouse, when concurring with children or descendants, is entitled to the usufruct of the improvement third (Art. 834 CC).

Second order: Ascendants (Arts. 935-942 CC)

In the absence of children and descendants, the deceased's parents inherit in equal shares (Art. 936 CC). If only one survives, they inherit the entire estate (Art. 937 CC). In the absence of both parents, grandparents inherit (Art. 940 CC): the closest in degree, dividing the inheritance equally between the paternal and maternal lines (Art. 941 CC).

The surviving spouse, when concurring with ascendants, is entitled to the usufruct of half the estate (Art. 837 CC).

Third order: The surviving spouse (Art. 944 CC)

In the absence of descendants and ascendants, the surviving spouse inherits the entire estate in full ownership. Essential requirement: the spouse must not have been legally or de facto separated at the time of death (Art. 945 CC).

Fourth order: Collateral relatives (Arts. 946-955 CC)

In the absence of descendants, ascendants, and spouse:

• Siblings and children of siblings: inherit in equal shares (Art. 947 CC). Children of predeceased siblings inherit by representation (Art. 948 CC). When full siblings concur with half-siblings, the latter inherit half the share of full siblings (Art. 949 CC).
• Other collaterals up to the fourth degree: uncles, cousins, and nephews/nieces (Art. 954 CC). The right of representation does not extend beyond children of siblings.

Fifth order: The State (Arts. 956-958 CC)

In the absence of all the above relatives, the State inherits and must allocate two-thirds of the inheritance to social interest purposes and the remaining third to social assistance in the province where the deceased last resided.

Surviving Spouse Rights in Intestate Succession

The surviving spouse's rights deserve detailed analysis, as they vary depending on who else inherits:

Concurrence with descendants

The spouse receives the usufruct of the improvement third (Art. 834 CC). In practice, this means the spouse is entitled to receive the income or returns from one-third of the estate for life, while bare ownership belongs to the children.

Concurrence with ascendants

The spouse receives the usufruct of half the estate (Art. 837 CC). Additionally, this usufruct may be commuted: the heirs may satisfy the spouse's usufructuary share by assigning a life annuity, the income from specific assets, or a cash capital amount (Art. 839 CC).

No descendants or ascendants

The spouse inherits the entire estate in full ownership (Art. 944 CC). They are the sole and universal heir, with priority over siblings and other collateral relatives.

Exclusión of the spouse

The spouse is excluded from the inheritance if at the time of death they were legally or de facto separated (Art. 945 CC). Divorce automatically extinguishes all succession rights. Article 834 CC requires that the spouse not be judicially or de facto separated to be entitled to the forced share.

Procedures to Formalize Intestate Inheritance

Step 1: Obtain death and last wills certificates

The death certificate is requested from the Civil Registry at the place of death. The certificate of last wills is obtained from the General Registry of Last Wills at the Ministry of Justice, confirming whether the deceased made a will. This certificate can only be requested after 15 business days from the date of death.

Step 2: Declaration of intestate heirs

Without a will, a declaration of intestate heirs must be processed:

• Before a notary (Art. 55 Notarial Law): when the heirs are descendants, ascendants, or the spouse of the deceased. The competent notary is the one at the deceased's last domicile, place of death, or where the majority of the estate is located (Art. 55.3 LN).
• Before the court: when the heirs are collateral relatives (siblings, nephews/nieces, cousins) or more distant relatives, voluntary jurisdiction proceedings are required (Law 15/2015, Arts. 55-56).

The notarial declaration requires the presence of two witnesses who can attest to the identity of the deceased, their marital status, closest relatives, and the non-existence of other heirs.

Step 3: Inventory and valuation of assets

A complete inventory of the estate is prepared: real estate, bank accounts, vehicles, investments, life insurance, debts, and encumbrances. Valuation is made as of the date of death.

Step 4: Deed of partition

The heirs, assisted by a lawyer, formalize the public deed of partition before a notary. This deed assigns specific assets to each heir. If there is no agreement, any co-heir may request judicial partition (Arts. 782-789 LEC).

Step 5: Tax settlement

The Inheritance and Gift Tax (ISD) must be settled within 6 months from the date of death, extendable by another 6 months if requested within the first 5 (Art. 68.1 of the ISD Regulations). The competent authority is the Autonomous Community of the deceased's last habitual residence, which generates significant differences in deductions and rebates depending on the territory.

Tax Implications: Inheritance Tax

Differences by Autonomous Community

The differences between communities are enormous. Communities such as Madrid, Andalusia, and Castilla-La Mancha apply rebates exceeding 99% for direct descendants and spouses. In contrast, communities like Asturias, Castilla y León, and the Valencian Community maintain significantly higher effective rates for medium-to-high-value inheritances.

State-level deductions

Article 20 of Law 29/1987 establishes kinship-based deductions:

• Group I (descendants under 21): EUR 15,956.87 + EUR 3,990.72 per year under 21 (maximum EUR 47,858.59).
• Group II (spouse, descendants over 21, ascendants): EUR 15,956.87.
• Group III (2nd and 3rd degree collaterals, ascendants and descendants by affinity): EUR 7,993.46.
• Group IV (4th degree and more distant collaterals, strangers): no deduction.

Municipal capital gains tax

In addition to the ISD, heirs must settle the Tax on the Increase in Value of Urban Land (IIVTNU or municipal capital gains tax) within 6 months if the inheritance includes urban properties. Following Constitutional Court Judgment 182/2021, the tax is not payable if there has been no real increase in value.

How Lexiel AI Facilitates Intestate Inheritance Management

Intestate succession involves multiple regulatory consultations, calculations of inheritance shares, and tax deadlines that Lexiel AI helps you organise:

• Automatic heir determination: by entering kinship data, Lexiel identifies the applicable order of succession and calculates each heir's share according to Articles 930-958 of the Civil Code.
• Case law search: Lexiel locates Supreme Court and Provincial Court decisions on contentious issues (e.g., de facto separation as grounds for spouse exclusión, or conflicts over the right of representation).
• Tax deadline calculation: the system alerts about the 6-month deadlines for the ISD and municipal capital gains tax, including the possibility of extensión.
• Document generation: Lexiel can generate drafts of the declaration of heirs, partition deeds, and its calculator estimates Inheritance Tax.

Frequently Asked Questions About Intestate Inheritance

Who inherits if I die without a will and have a spouse and children?

The children inherit in full ownership in equal shares. The surviving spouse receives the usufruct of the improvement third (Art. 834 CC). If there are three children, each receives one-third of bare ownership, and the spouse enjoys the usufruct of one-third of the total estate.

¿Can my domestic partner inherit if there is no will?

Under Spanish common law (Civil Code), a domestic partner has no succession rights in intestate succession. Only the spouse is contemplated in Articles 944 et seq. of the CC. However, some Autonomous Communities with their own regional law (Catalonia, Basque Country, Navarre) do recognize succession rights for domestic partners.

How long do I have to process the inheritance?

There is no legal deadline to accept or renounce an inheritance, unless an interested party files the judicial interpellation under Art. 1005 CC, in which case the heir has 30 days to decide. However, the deadline to settle the Inheritance Tax is 6 months from the date of death (extendable by another 6), and delay generates surcharges and late interest.

What happens if an heir does not want to accept the inheritance?

The heir may renounce the inheritance before a notary (Art. 1008 CC). The renunciation must be pure and simple and cannot be partial. The share of the renouncing heir is distributed among the other co-heirs by right of accretion (Art. 981 CC), or passes to the descendants of the renouncing heir by representation if any exist.

Can I accept the inheritance with limited liability?

Yes. Any heir may accept the inheritance with benefit of inventory (Arts. 1010-1034 CC), which limits their liability for the deceased's debts to the value of the inherited assets. This is especially recommended when the deceased's financial situation is unknown or there is suspición that debts may exceed assets.

How much does processing an intestate inheritance cost?

Costs include: certificates (death, last wills, Land Registry), notarial declaration of heirs (EUR 300-800 depending on estate value), partition deed (variable according to asset values), Inheritance Tax (variable by Autonomous Community and amount), municipal capital gains tax (if real estate is included), and Land Registry fees (if real estate is involved). In total, for an average inheritance, costs may range between EUR 2,000 and EUR 10,000.

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