Intestate succession opens when a person dies without having appointed an heir in a will or inheritance agreement, or when the appointed heir or heirs do not ultimately inherit, for example, when the named heir and their substitutes renounce the estate, or when the named heir predeceases the testator without a substitute. This is governed by Article 441-1 of the Catalan Civil Code (CCCat).
When intestate succession opens, the statutory order of succession applies, since the testator's wishes are no longer operative, either because there is no will, or because, although a will or inheritance agreement exists, the named heirs are unable to inherit.
.png?width=150&height=150&name=Foto%20Maria%20Serra-modified%20(2).png)
Written by Maria Serra
Lawyer and mediator
The statutory order of succession is as follows:
Intestate succession under the CCCat:
1.- Children in their own right, and their descendants by right of representation
2.- Spouse or registered partner. If they inherit alongside children, the spouse or partner is entitled to one quarter of the net estate plus a life interest (usufruct) over the main family home, with the option to convert this into a universal life interest over the entire estate. If they inherit alongside ascendants, those ascendants are entitled to one quarter of the net estate.
3.- Ascendants.
4.- Collateral relatives up to the 4th degree
Siblings in their own right, and the children of siblings by right of representation, take priority over other collateral relatives.
In the absence of siblings or nephews/nieces, the closest collateral relatives within the fourth degree inherit per capita, with no right of representation and no distinction between family lines.
5.- Generalitat de Catalunya (the Catalan regional government).
So, what happens if someone dies without having made a will while married or in a registered partnership, and has children?
- If a person has a partner or is married (the distinction is irrelevant, because under Catalan law, marriage and registered partnerships are now fully equivalent for inheritance purposes) and has children, and does not make a will, the law in Catalonia provides that the deceased's entire estate passes to their children. In the eyes of the law, the surviving spouse or partner is not an heir, but merely holds a life interest (usufruct) in the estate. To avoid this outcome, the best course of action is to make a will and decide how to distribute the estate between your partner and your children.
And what would happen if someone dies without a will while in a relationship and without children
- Another interesting scenario arises when someone dies without having made a will or inheritance pact, has no children, but does have a partner, and their parents are still alive: the partner will inherit the entire estate unless the parents claim a share of the inheritance for themselves. Again, this outcome can be avoided by making a will.
If, on the other hand, a valid and effective will or inheritance pact exists, the order of succession will be determined by the testator in that document. In such a case, the testator is free to distribute their estate as they wish, subject only to the mandatory inheritance rights known as the legítima.
The legítima (forced heirship share) is one quarter of the net estate, calculated in accordance with the applicable rules on estate computation, divided by the number of forced heirs.
Order of succession under a will
Testate succession under the Catalan Civil Code (CCCat):
1.- Children in their own right, and their descendants by right of representation
2.- The deceased's parents. The right of representation does not extend to other ascendants
In addition, there is the Quarta Vidual (surviving spouse/partner's quarter): this applies exclusively where the surviving spouse or cohabiting partner does not have sufficient financial resources, taking into account their own assets, any assets transferred to them by the deceased upon death, and any assets arising from the liquidation of the matrimonial property regime, to meet their basic needs. It entitles them to one quarter of the net estate.
So, what happens if you make a will while married and with children
- If someone dies having made a will (or inheritance pact) and names their children as heirs without making any provision for their partner, the entire estate will pass to the children, unless the partner claims one quarter of the estate on the grounds that they need it for their basic subsistence.
Contact a specialist inheritance lawyer:
You may also be interested in:
