Intestate succession, common in our daily practice, is activated when a person dies without having made a will or when the will is declared null. Under these circumstances, the Civil Code (CC) establishes a strict order of calls to determine who the legal heirs are. This article will explore the complexities of this process, focusing on the role of the surviving spouse and the existing differences with regional systems. It is crucial for legal professionals to understand these provisions, as their correct application can prevent unnecessary litigation and ensure that the rights of all interested parties are respected.
Order of Calls According to the Civil Code
The Spanish Civil Code, in its articles 913 to 958, establishes an order of calls that must be strictly followed in cases of intestate succession. First, the descendants of the deceased are called to inherit, dividing the inheritance into equal parts. If there are no descendants, the ascendants occupy the next place on the list. In the absence of ascendants, the surviving spouse has the right to the inheritance, followed by collateral relatives up to the fourth degree, and finally, the State.
This order of precedence is clear, but not without practical complications. For example, the coexistence of several heirs of the same degree can lead to disputes over the division of assets, especially in cases involving indivisible assets or family businesses. Jurisprudence has developed interpretations regarding these issues, such as in the Supreme Court ruling of 2023, which clarified the distribution of usufructs in the presence of indivisible assets.
The Role of the Surviving Spouse
The position of the surviving spouse in intestate succession is of particular interest. According to article 834 CC, the surviving spouse is entitled to the usufruct of the third intended for improvement if there are descendants, or to the usufruct of half of the inheritance if they coexist with ascendants. In the absence of both, they inherit in full ownership. This figure of usufruct, while protecting the spouse, can result in a conflict of interest with the naked owners, especially in cases of second marriages or blended families.
In our experience, litigation often arises when the rights of the surviving spouse are perceived as a burden on the naked owners. The Supreme Court ruling of 2024 highlighted the need to balance these interests, emphasizing the importance of considering the specific circumstances of each case to avoid a mechanical application of the law.
Universal Usufruct and Regional Differences
Universal usufruct is another relevant figure when discussing the surviving spouse. Although the Civil Code does not expressly contemplate it in intestate successions, some regional legislations, such as those in Catalonia and Navarra, do allow it, granting the spouse a lifetime right over all the deceased's assets. This regional approach can prevent conflicts with the naked owners by ensuring the spouse has stronger asset protection.
However, these regional differences can generate controversies, especially in cross-border successions where different regulations intersect. In these cases, the choice of forum and applicable law becomes a critical issue. The jurisprudence of the Court of Justice of the European Union has influenced these decisions, as observed in the 2025 case that addressed the applicability of Regulation (EU) No 650/2012 on international successions.
Practical Aspects and Common Litigations
In practice, litigations in intestate successions often arise from divergent interpretations of legal provisions or the presence of complex assets in the estate. Indivisible properties, such as land or businesses, can be sources of discord. Additionally, the rights of the surviving spouse over these assets can further complicate the distribution.
An effective strategy to mitigate these conflicts is mediation, which has proven to be a useful tool for reaching out-of-court agreements. Furthermore, advance succession planning, although not always possible in intestate cases, can facilitate the resolution of disputes through succession agreements or inter vivos donations, where permitted by law.
- Identify all potential heirs and their degree of kinship.
- Evaluate the existence of indivisible assets and the possibility of prior agreements.
- Consider mediation as an option to resolve disputes.
Conclusion
Managing intestate successions requires a deep understanding of the legal framework and the family dynamics involved. Tools like LexPartis are indispensable for lawyers seeking to handle these processes with maximum efficiency and accuracy, facilitating the organization of documentation and the tracking of relevant legal actions.