Declaration of intestate heirs

The death of people is a natural fact, an immutable and inevitable biological reality that reaches all human beings, since all of us, sooner or later, die.

This reality, beyond the pain and sorrow that it generates in all the relatives and loved ones of the deceased person, generates a series of consequences in the patrimonial sphere of the persons that it is necessary to order and resolve, since every human being, when he/she dies, to a greater or lesser extent, has a series of assets, rights and obligations whose owner has passed on. Logically, the new ownership of all these assets, rights and obligations must be determined, as this is necessary to ensure legal certainty, the conservation and preservation of such assets, rights and obligations and the value they treasure, as well as the continuation of the activities and legal relationships that derive from such assets and that provide value and wealth to society.

On this basis, the Spanish legislator, being aware of the transcendence that these situations generate in the life and death of persons, has long established a set of legal rules that regulate the succession of persons, that is, the set of rules that should regulate how the new ownership of the assets, rights and obligations of a person is determined, when that person dies. 

Entering into the analysis of the aforementioned regulations, first of all, it is necessary to refer to the concept of succession rights, taking into account that the succession rights of a person are transmitted from the moment of his death. Thus, when a person dies, a succession right is generated, i.e., a right in favor of a person to become the new owner of all the assets, rights and obligations of this deceased person.

The determination of the person or persons to whom it will correspond to acquire these succession rights is set forth in the law, which establishes that the succession is granted by the will of man manifested in a will, and, in the absence of a will, by provision of the law. As it can be observed, the legislator has established two main ways to determine to which persons will acquire the succession rights of the deceased person, as follows:

• The will, which can be defined as the act in which a person determines how his estate is to be distributed at the time of his death. In this case, we can speak of testamentary succession (for more details on wills, please visit the corresponding section of this web page).
• And in the absence of a will, that is to say, when the deceased person has not granted a will, the succession will be governed by the provisions of the law, that is to say, the ownership of the estate of the deceased will be attributed to the person or persons that the legal norms establish for this purpose. In this case, we can speak of legitimate succession.
  

In any case, it is necessary to specify that in certain cases the succession may also be deferred jointly by the will of man and by the provisions of the law.

Finally, in this section, it is necessary to specify that the Law calls this set of assets, rights and obligations of the deceased the inheritance, which may be attributed to an heir, who will succeed universally with respect to all the assets and rights of the deceased, or to a legatee, who will succeed individually, that is to say, only with respect to specific assets and rights.

As has just been indicated, the succession of persons may be governed by two main ways, such as testamentary succession or, failing that, by the provisions of the law. 

Thus, when a person dies, the determination of the new ownership of his assets, rights and obligations that have not been extinguished with his death will be ordered by what that same person has established in his will and, in the absence thereof or when the same cannot be applied, by the rules and precepts established by the applicable civil legislation in this respect.

On this basis, intestate succession can be defined as the set of cases in which a person either dies without a will, or in which there are certain circumstances that prevent the will that may exist from being applicable to the succession of the deceased. Therefore, when this situation arises upon the death of a person, it is necessary to resort to the provisions of the civil law to determine which persons should be declared heirs of the deceased, in order to guarantee the legal security, the conservation and preservation of the assets, rights and obligations of the deceased that contribute value and wealth to the society.

Thus, legitimate succession, i.e., intestate succession, is applicable in the following cases:

In the field of Catalan civil law, the main issues to be highlighted are undoubtedly the order of succession, which has the following particularities:

Firstly, in accordance with article 442-1 CCCat, the inheritance will be deferred to the children of the deceased, in their own right, and to their descendants by right of representation (which in Catalan civil law is expressly regulated in article 441-7 CCCat), and must be taken into account:

• If the children or descendants concur to the inheritance with the widowed spouse or the surviving cohabitant in stable partnership, the latter will be entitled to the universal usufruct of the inheritance (article 442-3 CCCat), although he/she may exercise his/her right of commutation, provided for in article 442-5 CCCat, which will allow him/her to be attributed a fourth aliquot part of the inheritance and also the usufruct of the marital or family home. Provided that it is requested within one year after the death.
• In case of repudiation of the inheritance of one of the children or descendants called to the succession, his share shall be added to that of the other descendants of the same degree.
• If all the called descendants of the same degree repudiate the inheritance, it will be deferred to the descendants of the next degree in their own right, but divided by lineage and in equal parts among the descendants of each lineage (Article 442-2.1 CCCat). 
• However, this will not happen if all the children of the deceased repudiate the inheritance during the lifetime of the spouse or cohabiting partner, and the latter is their common parent (Article 442-2.2 CCCat), which in practice is very common, since it allows the entire inheritance to be defended in favor of the surviving spouse.
  

Secondly, and in the absence of children or descendants of the deceased, the inheritance is deferred to the widowed spouse or the surviving stable cohabitant (Article 442-3.2 CCCat), but the parents of the deceased will retain the right to the reserved portion. However, the widowed spouse will not have the right to succeed intestate if at the time of the opening of the succession he/she was separated from the deceased judicially or de facto, or if a marriage annulment, divorce or separation lawsuit was pending, unless the spouses have reconciled (Article 446-2 CCCat).

Thirdly, in the absence of children or descendants and without a spouse or cohabitant, the inheritance is deferred to the parents in equal parts (Article 442-8 CCCat), and if only one of them is living, the deferral to this one extends to the entire inheritance. On the other hand, if the deceased died in the situation described above and also without parents, the inheritance will be deferred to the ascendants in the closest degree (Article 442-8.2 CCCat), taking into account that if there are two lines of relatives of the same degree (for example, paternal and maternal grandparents), the inheritance is divided by lines, and within each line, by heads.

Fourth, in the absence of children or descendants, without a spouse or cohabitant and also without other ascendants, the inheritance will be deferred to the collateral relatives (Article 442-9 CCCat), with the following structure (Article 442-10 CCCat):

Finally, in the absence of all the relatives indicated above, the Generalitat de Catalunya will succeed (Article 442-12 CCCat).

The order of succession in the cases of intestate succession, that is to say, to which persons and in what order it corresponds to declare heirs, in our legal system is determined by what is established in the Civil Code in its articles 930 and following. In order to understand the content of this regulation, first of all, the order of succession will be explained in a generic way and later, the particularities that each of the detailed figures can present. 

Thus, as regards the order of succession generically understood, it is necessary to specify that:

1. In the first place, the descendants of the deceased will inherit (i.e., their children, grandchildren, etc.).
2. In the absence of these, the ascendants of the decedent (i.e. parents, grandparents, etc.) will inherit.
3. In the absence of ascendants and descendants, the surviving spouse, if any, will inherit.
4. In the absence of descendants, ascendants and surviving spouse, collateral relatives up to the fourth degree (i.e., siblings, nieces, nephews, etc.) will be entitled to inherit.
5. And in the absence of all of them, the succession will correspond to the State.

The right of representation is a hereditary right by virtue of which the relatives of a deceased person are recognized to succeed the deceased person in all the rights that he/she would have had if he/she had lived or had been able to inherit.

<ejemplo>Así pues, y a modo de ejemplo, en un supuesto de sucesión intestada en que una persona fallezca con únicamente un hijo vivo y dos nietos (estos últimos, hijos de un segundo hijo fallecido previamente), los dos nietos adquirirán los derechos hereditarios a la sucesión de su abuelo por representación de su padre fallecido.<ejemplo>

As the most important aspects of this right of representation, it is necessary to state the following:

• The right of representation always takes place in the descending line (i.e. from parents to children, grandchildren, etc.) but never in the ascending line. As far as the collateral straight line is concerned, it will only take place in favor of the children of siblings (a matter already detailed in the previous section).
• Whenever succession is by representation, the division of the inheritance will be made by lineage, so that the representative or representatives do not inherit more than what the represented party would inherit, if living(following the previous example, this implies that the son of the deceased would be entitled to 50% of the inheritance and the two grandchildren the remaining 50% to be divided between them).
• As already indicated in the previous question, if children of one or more siblings of the deceased remain, they will inherit by representation if they concur with their uncles and aunts, but if they concur alone, they will inherit in equal shares.
• On the other hand, it is also necessary to point out that the right to represent a person is not lost for having renounced his or her inheritance(i.e., for example, a person could renounce the inheritance of a parent and subsequently compete for the inheritance of his or her grandparent by virtue of the right of representation).
• Finally, it is necessary to know that a living person cannot be represented except in cases of disinheritance or incapacity(so that, for example, children of disinherited or incapacitated persons may compete to the inheritance of their grandparents by right of representation, even if their parents are still alive).