Inheriting Without a Will in Spain: Who Inherits and in What Order

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Dealing with the death of a family member is a painful process that is often complicated by bureaucracy and legal doubts. When a person dies in Spain without having made a will — which is legally known as sucesión ab intestato (intestate succession) or sucesión legítima (lawful succession) — the big question immediately arises: who gets the assets and under what rules? Spanish legislation provides a legal safety net for these cases, precisely determining the order of succession and the necessary procedures to allocate the estate, ensuring that no asset is left in limbo, but introducing a series of tax obligations and strict deadlines that should be known in detail to avoid costly penalties.

The legal framework of intestate succession in Spain

Intestate succession does not mean that the State automatically keeps the deceased's assets. On the contrary, the Spanish legal system designates the heirs following a principle of kinship and consanguinity.

The reference regulatory framework governing this situation is, in general, the Spanish Civil Code (in its Book III, Title III, Chapter III, dedicated to intestate succession). However, Spanish regulation presents a fundamental particularity: the coexistence of common law (Código Civil) with the regional or special laws (derechos forales) of autonomous communities such as Catalonia, Aragon, the Balearic Islands, Navarre, Galicia, and the Basque Country. These regions have their own rules of the game, especially regarding the rights of the surviving spouse and the forced shares (legítimas), so the first step will always be to determine the vecindad civil (civil status/regional residency) of the deceased to know which legislation applies.

Who inherits and in what order? The Civil Code scheme

Under common law (Código Civil), the law establishes an order of calling that is exclusionary in nature. This means that the existence of relatives of a preceding line eliminates the right to inherit of subsequent lines.

The hierarchical order is as follows:

1. Descendants (Children and grandchildren)

The children of the deceased and their descendants are first in the line of succession, without distinction of sex, age, or filiation (Article 930 and following of the Código Civil).

• Children inherit in equal parts ("by heads").
• If a child has passed away before the deceased, their own children (the grandchildren) inherit their share by "right of representation" (dividing that portion "by stirpes").

2. Ascendants (Parents and grandparents)

In the absence of children or grandchildren, the inheritance goes up the family line to the parents (Article 935 of the Código Civil).

• The father and mother inherit in equal parts.
• If only one of the parents survives, they inherit the entirety of the assets.
• In the absence of parents, the grandparents inherit (dividing the inheritance at 50% between the paternal and maternal lines if grandparents from both branches are alive).

3. The surviving spouse

If there are no descendants or ascendants, the spouse who is not legally or de facto separated is the sole heir of all assets (Article 944 of the Código Civil).

Note of vital importance: Under common law, parejas de hecho (de facto/unregistered partners) do not have the right to inherit intestately, unlike what happens in regional legislations such as those of Catalonia or the Balearic Islands, where they are practically equated to marriage.

4. Collaterals (Siblings, nieces/nephews, uncles/aunts, and cousins)

If there are no descendants, ascendants, or spouse, the inheritance is destined for collateral relatives up to the fourth degree of consanguinity (Article 946 and following of the Código Civil):

• Firstly, siblings and nieces/nephews (siblings in equal parts; nieces/nephews by representation of their deceased parents).
• In their absence, biological uncles and aunts.
• Finally, first cousins (the limit of the fourth degree).

5. The State

If there are no relatives within the previous degrees, the final heir is the Spanish State (or the corresponding Autonomous Community in certain regional regimes), which is obliged to allocate two-thirds of the estate to social interest or charitable purposes.

The rights of the surviving spouse: the life usufruct

Even when there are descendants or ascendants who displace the spouse as the universal heir, the law protects the widow or widower by granting them a portion of the inheritance under a usufructo vitalicio (life usufruct) regime (the right to use and enjoy the assets, even though the ownership belongs to the children):

• If there are children or descendants: The surviving spouse is entitled to the usufruct of the third of the estate destined for improvement (tercio de mejora) (Article 834 of the Código Civil).
• If there are no children, but there are ascendants (parents): The spouse is entitled to the usufruct of half (50%) of the inheritance (Article 837 of the Código Civil).
• If there are no descendants or ascendants: As mentioned, they inherit the full ownership of all assets.

Step-by-step practical procedures to process an estate without a will

The absence of a will drafted by the deceased forces a prior procedure to be carried out to legally determine who the heirs are. This process is called the Declaración de Herederos Ab Intestato (Declaration of Heirs Ab Intestato).

Below are the practical steps you must follow:

Step 1: Obtaining initial certificates

No procedure can be started before 15 business days have elapsed since the death. You must request:

1. Certificado Literal de Defunción (Literal Death Certificate): Issued by the Registro Civil (Civil Registry) of the place of death.
2. Certificado de Actos de Última Voluntad (Registry of Last Wills Certificate): This is the official document that certifies whether or not the deceased made a will. It is requested from the Ministry of Justice by providing the death certificate and paying the corresponding fee (Form 790). If the certificate indicates "Without a will" (Sin testamento), you can proceed.
3. Certificado de Contratos de Seguros de Cobertura de Fallecimiento (Life Insurance Contracts Certificate): To find out if the deceased had contracted any life insurance.

Step 2: The Declaration of Heirs Ab Intestato before a Notary

Since the reform of the Ley de Jurisdicción Voluntaria (Voluntary Jurisdiction Act), this procedure is carried out exclusively before a Notary, specifically in a notary's office in the place of the deceased's last address, where they had the majority of their estate, or the place of their death.

You must provide the Notary with:

• Death certificate and the últimas voluntades (last wills) certificate.
• Libro de familia (family record book) or birth and marriage certificates proving the relationship of the claimants.
• Spanish DNI or NIE of the deceased.
• Two witnesses who know the family, who have no direct interest in the inheritance, and who can testify that the deceased had no other children or relatives with a better right.

The Notary will draft a deed, and a waiting period of 20 business days must elapse in case any other heir appears before proceeding to close the deed and issue the formal declaration of heirs.

Step 3: Inventory and valuation of assets

Once the heirs are formally declared, a list must be made of all assets (properties, bank accounts, vehicles, etc.) and the debts of the deceased as of the date of death. Bank balances are certified by a balance certificate issued by the corresponding financial institutions.

Step 4: Drafting of the Deed of Acceptance and Allocation of Inheritance

The heirs appear again before the Notary to sign the Escritura de Aceptación y Adjudicación de Herencia (Deed of Acceptance and Allocation of Inheritance), where the assets are detailed, valued economically, and the corresponding shares are allocated to each heir.

Step 5: Tax settlement and registration

The corresponding taxes must be settled (see the deadlines and figures section) and, subsequently, the deed must be presented to the Registro de la Propiedad (Property Registry) to register any real estate in the name of the new owners.

Deadlines, amounts, and key figures you must know

Managing an estate is subject to strict deadlines and tax costs that vary significantly depending on the territory:

• 6 months: This is the legal and non-extendable deadline (unless an extension is requested within the first 5 months) to settle the Impuesto sobre Sucesiones y Donaciones (ISD) (Inheritance and Gift Tax) and the Plusvalía Municipal (Municipal Capital Gains Tax - IIVTNU) if there are real estate assets. The period begins to count from the day of death.
• 100% surcharge and late payment interest: Delaying the submission of taxes entails tax penalties that can range from a 5% to a 20% surcharge for late filing without prior demand, plus the corresponding late payment interest.
• Regional tax allowances: Depending on the Autonomous Community, allowances for Group I and II relatives (children, parents, and spouses) can reach up to 99% of the tax liability (as occurs in Madrid, Andalusia, the Valencian Community, or Galicia), reducing the tax cost to minimal amounts. In other communities, estates of high value can be taxed at rates exceeding 34%.

Concrete examples of distributing an estate without a will

To better understand how the law operates in practice, let us analyze two common scenarios under common law (Código Civil):

Example 1: The death of a parent with a spouse and children

Let's imagine the case of Juan, who dies without a will in Madrid. He was married to Carmen under the régimen de gananciales (joint matrimonial property regime) and leaves two children, Laura and Pedro. The assets of the joint property consist of a primary residence valued at 200,000 € and a savings account with 40,000 €.

• Liquidation of joint property: 50% of the assets (half of the house, i.e., 100,000 €, and 20,000 € in cash) already belong to Carmen due to the dissolution of the marriage. The other 50% constitutes Juan's estate (120,000 € in total).
• The distribution of the inheritance:
• Laura and Pedro inherit the nuda propiedad (bare ownership) of the estate's assets in equal parts: 60,000 € each (which equates to 25% of the property and 10,000 € in cash for each).
• Carmen, the widow, does not inherit the ownership of the assets, but she is guaranteed by law the life usufruct of one-third of Juan's estate (valued at 40,000 €). To access the money or sell the property, the children will need their mother's agreement.

Example 2: Death without descendants or ascendants, but with a de facto partner

Let's imagine Carlos, who dies suddenly without a will in Castile and León (common law). He had lived for 15 years with his pareja de hecho (de facto partner), Marta, in a rented flat costing 900 € per month. Carlos had a bank account in his name with 60,000 € and a car valued at 12,000 €. His parents passed away years ago, but his brother Luis survives him.

• The distribution of the inheritance:
• As the Código Civil applies and there is no formal marriage, Marta has no inheritance rights over Carlos's assets, despite the 15 years of cohabitation. She cannot claim a usufruct either.
• Luis, Carlos's brother, is declared the sole universal heir by collaterality. Luis inherits the 60,000 € from the account and the car worth 12,000 €.
• Marta is forced to negotiate the transfer of the lease contract of 900 € or leave the property, without receiving any compensation from her partner's estate.

Mistakes you must avoid

• Confusing a de facto partner with marriage: In communities regulated by the common Código Civil, parejas de hecho lack automatic inheritance rights if there is no will. If this is your case, a lack of planning can leave your partner in a situation of absolute vulnerability.
• Letting the 6-month deadline pass due to "grief": the tax agency (Hacienda) does not pause its deadlines for emotional reasons. Failing to file inheritance taxes on time generates automatic surcharges that make the process significantly more expensive, even if the estate is exempt from payment due to allowances.
• Accepting the inheritance "tacitly" if there are debts: If the deceased had significant debts, performing acts of disposal of their assets (such as using their car or paying debts with their money) can be considered a aceptación tácita (tacit acceptance). This means you will inherit both the assets and the debts, responding to the latter with your own personal assets. In case of doubt, the inheritance must be accepted a beneficio de inventario (under benefit of inventory).
• *Not coordinating the civil status (vecindad civil): Applying the rules of the common Código Civil* to a deceased person with Catalan, Aragonese, or Balearic civil status (or vice versa) can invalidate the entire heir declaration process, forcing notary and tax procedures to be redone with the consequent duplicated expense.

Frequently Asked Questions (FAQ)

What happens if an heir refuses to sign the inheritance without a will?

If one of the heirs blocks the process by refusing to accept or repudiate the inheritance, the other heirs are not left helpless. They can go to a Notary to perform a notary interpellation under Article 1005 of the Código Civil. The Notary will notify the difficult heir that they have a period of 30 calendar days to accept (purely and simply, or under benefit of inventory) or repudiate the inheritance. If they do not declare their will within that period, the law establishes that the inheritance is understood to be accepted purely and simply, unlocking the process but making the heir liable for debts if there are any.

Can I renounce an inheritance if there is no will and it has many debts?

Yes, the renunciation or repudiation of an inheritance is a right of any heir. It must be formally executed before a Notary in a public deed. As there is no will, if you renounce, your share will pass to your children (by right of representation) or to the rest of the co-heirs of your same degree. If all relatives of one line renounce, the inheritance will pass to the next line of kinship until it reaches the State.

How much does it cost to make the declaration of heirs at the notary?

The cost of the deed of declaration of heirs ab intestato is regulated by notary fees, but it usually ranges between 250 € and 400 €, depending on the number of pages in the document, the number of heirs involved, and the annexed documents that need to be incorporated. To this amount, the cost of the deed of partition and allocation of the inheritance must be added later.

If my father died without a will, can I withdraw money from his account to pay for the funeral?

Bank entities block the deceased's accounts as soon as they are notified of the death. However, most banks exceptionally allow the release of funds strictly necessary to cover burial and funeral expenses, provided that the funeral home invoice and the death certificate are presented. For the remaining balance, it will be mandatory to present the declaration of heirs and the settlement of the Inheritance Tax.

In summary

• An inheritance without a will (ab intestato) is governed by a strict and exclusionary order of kinship determined by law.
• Descendants (children and grandchildren) always have absolute preference, followed by ascendants (parents) and the spouse.
• Under common law, parejas de hecho do not have automatic inheritance rights if no prior will exists.
• It is mandatory to process a notary deed of Declaración de Herederos before the assets can be distributed and allocated.
• There is a maximum period of 6 months from the death to settle the Inheritance Tax and avoid penalties.
• The vecindad civil of the deceased determines whether the general Código Civil or regional autonomous laws apply, which offer substantial advantages or differences.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.