Intestate Succession in Spain: A Complete Guide

When a person dies without having made a valid will, or when the will does not contain a universal heir designation, intestate succession (also known as abintestato) applies, governed by Arts. 912 to 958 of the Código Civil (CC) (Spanish Civil Code). Autonomous Communities with their own regional civil law (Derecho Civil foral) ( namely Aragon, Catalonia, Navarre, the Basque Country, the Balearic Islands, and Galicia ) may have different rules on succession matters.

When Intestate Succession Is Opened

Intestate succession applies when (Art. 912 CC):

1. The deceased dies without a will.
2. The will is void or loses its validity.
3. The will does not contain a heir designation for all or part of the estate.
4. The designated heir renounces the inheritance or is unable to inherit (due to predecease, unworthiness, or disinheritance).

Order of Intestate Heirs (Common Law Rules)

The CC establishes the following order of succession, whereby a prior degree excludes the subsequent one:

1st: Descendants (Arts. 930–934 CC)

Children inherit in equal shares. If a child has predeceased, their children (grandchildren of the deceased) inherit by right of representation (Art. 924 CC), taking the share that would have belonged to the predeceased parent and dividing it equally among themselves.

The surviving spouse does not hold the status of heir at this level, but does hold a usufruct right over the improvement third (tercio de mejora: one-third of the estate reserved for the testator's discretionary allocation among descendants), in addition to their own forced-share rights (derechos legitimarios) (Art. 834 CC).

2nd: Ascendants (Arts. 935–942 CC)

If there are no descendants, ascendants inherit. Parents inherit in equal shares; if one has predeceased, the entire share passes to the survivor. If there are no parents, inheritance passes up to the grandparents, and so on.

The surviving spouse is entitled to the usufruct of one-half of the estate (Art. 837 CC) when inheriting alongside ascendants.

3rd: Surviving Spouse (Art. 944 CC)

If there are no descendants or ascendants entitled to inherit, the surviving spouse inherits full ownership of the entire estate. A legally or de facto separated spouse has no succession rights (Art. 945 CC).

4th: Collateral Relatives (Arts. 946–955 CC)

In the absence of the above:

• Siblings: inherit in equal shares, with a distinction between full siblings (same father and mother) and half-siblings (only one parent in common, who receive half the share of full siblings).
• Nephews and nieces: inherit by representation the share of their predeceased parent.
• Other collateral relatives up to the 4th degree: uncles, aunts, cousins, etc. The right of representation does not apply to collateral relatives beyond the 4th degree.

5th: The State (Art. 956 CC)

In the absence of all of the above, the State inherits (or the corresponding Autonomous Community, in accordance with regional legislation). The State may not renounce an intestate inheritance.

Rights of the Surviving Spouse: Universal Usufruct

In intestate succession, the rights of the surviving spouse vary depending on who else is entitled to inherit:

Co-heirs	Surviving Spouse's Right
With children or descendants	Usufruct of the improvement third (1/3 of estate)
With ascendants	Usufruct of one-half of the estate
Without descendants or ascendants	Full ownership of the entire estate

The surviving spouse may commute the usufruct for a life annuity, for the proceeds of specific assets, or for a cash capital sum (Art. 839 CC), with the consent of the heirs or judicial authorisation.

Procedure for Processing an Intestate Estate

1. Declaration of Intestate Heirs (Declaración de Herederos Abintestato)

The first step is to obtain the declaration of intestate heirs (declaración de herederos abintestato), which is the formal legal document establishing who the lawful heirs are:

• If the heirs are descendants, ascendants, or a spouse: the procedure is handled before a Notary (Notario) (voluntary jurisdiction proceedings, Art. 55 of Law 15/2015).
• If the heirs are collateral relatives or the State: the procedure must be brought before a Court (Art. 978 of the Ley de Enjuiciamiento Civil: LEC, the Spanish Civil Procedure Act).

Required documents include: death certificate, certificate of last wills (certificado de últimas voluntades: confirming the absence of a registered will), family record book (libro de familia), and national identity documents of the heirs.

2. Inventory and Acceptance of the Inheritance

Once the heirs have been declared, they must:

• Draw up an inventory of the deceased's estate (assets, debts, and credits).
• Decide whether to accept unconditionally (thereby also assuming the debts) or under benefit of inventory (a beneficio de inventario: limiting liability to the value of the inherited assets, Art. 1023 CC).
• Divide the estate by means of a notarial deed of partition (escritura de partición) or, in the event of disagreement, through judicial inheritance division proceedings (Arts. 782–805 LEC).

3. Settlement of Inheritance Tax

The deadline to file and pay Impuesto sobre Sucesiones y Donaciones (Inheritance and Gift Tax) is 6 months from the date of death, extendable by a further 6 months if requested within the first 5 months. Tax reliefs and rates vary significantly by Autonomous Community.

The Right of Representation and Substitution

The right of representation (Art. 924 CC) operates in the direct descending line (always) and in the collateral line only in favour of nephews and nieces when they inherit alongside uncles and aunts (i.e., as children of a predeceased sibling). It does not operate in the ascending line.

Ordinary substitution (sustitución vulgar, Art. 774 CC) is the designation in a will of a person who will replace a named heir if that heir is unwilling or unable to inherit. In intestate succession there is no substitution mechanism as such, but the right of representation serves an equivalent function.

Conclusion

Intestate succession can be a lengthy and contentious process, particularly in large families or where the estate includes assets that are difficult to value. Seeking legal advice from the outset helps avoid errors in the declaration of heirs, ensures a proper valuation of the estate, and protects the rights of the surviving spouse, whose position in the distribution of the estate is frequently misunderstood.