The pending inheritance is a concept that often generates uncertainty in the practice of succession law. This intermediate state, which occurs between the death of the decedent and the acceptance of the inheritance by the heirs, presents a series of legal and practical challenges. Here, we will address its legal regime under the Spanish Civil Code, without overlooking the procedural and tax aspects that affect professionals managing these situations. A deep understanding of these elements is essential to avoid risks and optimize the management of the patrimonial interests at stake.
Legal Nature of the Pending Inheritance
The pending inheritance is considered a sui generis community of goods that remains in abeyance until the acceptance of the inheritance by the heirs. During this period, the inheritance lacks its own legal personality, but the Civil Code provides certain mechanisms for its administration and defense. According to Article 661 CC, the assets of the inheritance are available to the heirs from the moment of the decedent's death, although this availability is subject to limitations until acceptance is formalized.
The doctrine has extensively debated whether the pending inheritance can be considered a legal person. Although opinions denying this possibility prevail, jurisprudence has recognized, in certain cases, the capacity of the inheritance to be a party in judicial proceedings, as reflected in the Supreme Court ruling of March 14, 2018. This pragmatic approach seeks to protect the patrimonial interests involved.
Representation and Procedural Defense
The procedural management of the pending inheritance can be complex. In the absence of a formal acceptance of the inheritance, interested parties may request the appointment of a judicial administrator to represent and defend the disputed assets, as established by Article 792 CC. This administrator acts as a temporary custodian of the patrimonial interests until the heirs accept the inheritance.
Jurisprudence has established clear criteria regarding the intervention of the courts in these cases. An example is the ruling of the Supreme Court of November 25, 2019, which states that judicial intervention is justified when there is a risk of deterioration of the hereditary estate or conflict among potential heirs. This appointment can be vital for the preservation of assets, especially in cases of prolonged or complex litigation.
Acts of Conservation and Judicial Administration
During the pending inheritance phase, acts of conservation are permitted to protect the decedent's estate. These acts should not be confused with acts of disposition, which can only be performed once the inheritance is accepted. Potential heirs, or the judicial administrator if appointed, may carry out actions to prevent the deterioration of the assets, such as maintaining properties or managing urgent debts.
Judicial administration, regulated in Article 793 CC, is activated in the absence of an agreement among the heirs or when none take the initiative to formally accept the inheritance. In these cases, the judicial administrator not only conserves but also manages the estate efficiently, reporting to the courts on the actions taken. These measures are particularly useful in hereditary files that extend for years due to family disputes or legal complexities.
Tax Aspects: IS vs. IRPF
In the fiscal realm, the pending inheritance raises questions about the taxation of income generated by the assets during this period. According to the General Directorate of Taxes, the applicable regime depends on the nature of the income. If the income arises from an economic activity, it is subject to the Corporate Tax (IS) of the pending inheritance. Conversely, if the income is of a passive nature, such as interest or rents, it is attributed to the potential heirs under the Personal Income Tax (IRPF).
Recent resolutions from the TEAC in 2025 have clarified that, in the absence of express acceptance, heirs cannot deduct expenses related to the inheritance in their IRPF until acceptance is formalized. This highlights the importance of adequate tax inheritance planning to avoid unexpected tax contingencies.
Practical Issues in Long Files
Hereditary files that extend over time present specific challenges. Delays in acceptance may be due to the complexity of the estate, the international residence of heirs, or family conflicts. In our daily practice, we have observed that these factors increase the risk of asset value loss and raise administration costs.
It is crucial to establish efficient communication mechanisms among all parties involved and, when necessary, consider mediation as an alternative to resolve disputes. The use of technological tools, such as inheritance management platforms, can facilitate the tracking and coordination of necessary actions to protect the decedent's estate.
- Appoint a judicial administrator in case of disagreement among heirs.
- Carry out acts of conservation to prevent asset deterioration.
- Consider mediation to resolve prolonged family conflicts.
In conclusion, managing a pending inheritance requires a meticulous approach to ensure that the interests of all parties are safeguarded until formal acceptance. Tools like LexPartis can play a crucial role by enabling professionals to handle these processes more efficiently and accurately, thereby reducing the risk of errors in the administration of complex estates.