Succession law

What is succession law?

Succession law —also known as inheritance law— is the branch of civil law that regulates the transfer of a person’s assets, rights and obligations after their death.

It determines who may inherit from the deceased, how the contents of the estate are established, the legal effects of a will, what happens when there is no valid testamentary disposition, and how inherited assets are accepted, renounced, administered, divided and allocated.

Succession law covers both succession arranged according to the wishes of the deceased and succession in which the law determines who is entitled to inherit.

Legal basis

The main legal framework governing the Spanish general system of succession law is found in the Spanish Civil Code, particularly Articles 657 to 1087.

Article 657 establishes that succession rights are transferred from the moment of a person’s death.

Article 658 distinguishes between:

Testate succession: succession arranged according to the wishes expressed by the deceased in a will.
Statutory or intestate succession: succession determined by law where there is no valid and effective testamentary disposition covering all or part of the estate.

Both forms of succession may coexist where the will does not dispose of all the deceased’s assets.

What does succession law regulate?

Succession law regulates the legal relationships that arise as a consequence of a person’s death.

Among other matters, it determines:

The opening of the succession.
The law applicable to the estate.
Capacity to inherit.
The validity and effects of the will.
The identification of heirs and legatees.
The rights of forced heirs.
Intestate succession.
Acceptance and renunciation of the inheritance.
Liability for inheritance debts.
Administration of the estate.
Partition and allocation of the assets.

Its purpose is to provide a legal framework through which the deceased’s transferable estate can pass to their successors in an orderly manner.

What types of succession are there?

Succession may mainly be classified as testate or intestate, depending on whether the deceased left a valid and effective testamentary disposition.

Testate succession

Testate succession takes place where the deceased made a valid will establishing how their assets and rights should be distributed after death.

The testator may appoint heirs, order legacies, establish substitutions and include other succession provisions, but must comply with the limits imposed by law.

These limits include the forced shares reserved for certain relatives where the Spanish general civil law system applies.

Intestate succession

Intestate succession —also known in Spanish law as statutory succession or abintestato succession— takes place where the law determines who is entitled to inherit from the deceased.

It may arise, among other circumstances:

Where a person dies without making a will.
Where the will is void or has ceased to be valid.
Where the will does not dispose of all the assets.
Where a condition imposed on an heir is not fulfilled.
Where the appointed heir dies before the testator and no substitute has been designated.
Where the heir renounces the inheritance and neither substitution nor the right of accrual applies.
Where the appointed heir lacks capacity to inherit.

In these cases, the law establishes the order in which relatives are called to inherit and, ultimately, the corresponding public authorities.

Who may inherit?

Article 744 of the Spanish Civil Code establishes that anyone who is not legally disqualified may inherit under a will or through intestate succession.

Capacity to inherit is the legal ability to receive assets or rights from an estate.

The Spanish Civil Code provides for certain grounds of incapacity or unworthiness to inherit, including particularly serious conduct against the deceased or their family.

Capacity to inherit should not be confused with the status of forced heir. A person may have legal capacity to inherit without being protected by a forced share.

What role do forced heirs have?

Under the Spanish general civil law system, the testator’s freedom is limited by the rights of forced heirs or compulsory heirs.

Article 807 of the Spanish Civil Code recognises the following as forced heirs:

Children and descendants in relation to their parents and ascendants.
In their absence, parents and ascendants in relation to their children and descendants.
The surviving spouse, in the manner and to the extent established by law.

The law reserves a portion of the estate for these persons, known as the forced share, which the testator must respect unless a valid ground for disinheritance applies.

Difference between succession law and inheritance

Succession law and inheritance are related concepts, but they are not equivalent.

Succession law is the branch of law that regulates the transfer of a person’s estate after death.
An inheritance is the specific group of assets, rights and obligations that do not cease upon death and are transferred through the succession.

Succession law therefore provides the legal rules, while the inheritance is the estate to which those rules apply.

Are obligations also transferred?

Succession does not include only the assets and rights of the deceased. It may also include transferable obligations and debts.

Article 659 of the Spanish Civil Code establishes that an inheritance comprises all the assets, rights and obligations of a person that do not cease upon death.

The heir’s liability for the debts will depend on how the inheritance is accepted:

Unconditional acceptance: the heir may also be liable with their personal assets.
Acceptance under benefit of inventory: liability is generally limited to the assets forming part of the estate, provided that the legal requirements are met.

Before accepting an inheritance, it is therefore advisable to identify both its assets and any possible debts.

Regional particularities

Although the Spanish Civil Code is the main source of the general civil law system, several territories in Spain have their own civil law and specific succession rules.

These include Catalonia, Aragon, Galicia, Navarre, the Basque Country and the Balearic Islands.

These legal systems may establish significant differences in matters such as:

The amount and nature of forced shares.
The identity of compulsory heirs.
Succession agreements.
The rights of the surviving spouse or partner.
Acceptance of the inheritance.
Liability for debts.
Methods of partition.

As a general rule, whether the Spanish general civil law system or a special or regional civil law system applies depends on the deceased’s civil domicile, rather than merely on the place where they lived or died.