Intestate Succession and Incapacitation in Spanish Law
Incapacitation and the Prodigal
Incapacitation
Incapacitation is a protective measure for individuals unable to govern themselves due to impaired understanding and decision-making abilities. It provides a set of legal institutions designed to address this lack of capacity, allowing for the protection of their person and interests. The Spanish state guarantees the right to liberty and personal development for all citizens, including those who cannot exercise these rights due to immaturity or illness. Incapacitation is declared by judicial decision (Art. 199 CC), establishing the necessary protective measures based on the individual’s needs.
The Prodigal
A prodigal individual’s economic behavior creates unreasonable risks to their heritage, potentially harming their family. Prodigality is not a cause of incapacitation but a limitation on legal capacity. It aims to protect the family by ensuring the prodigal fulfills their family obligations. Two factors must be present for a declaration of prodigality:
- Habitual economic conduct that endangers capital (not simply a bad investment).
- Detriment to family interests; a prodigal declaration is impossible without family economic obligations.
Intestate Succession, Kinship, and Representation
Concept
Intestate succession occurs when a person dies without a valid will, designated heirs are unable to inherit, the will is invalid, or all property is distributed in legacies. The law then designates certain relatives as “intestate heirs.”
Deferred Forms of Intestate Inheritance
Within each line of succession, the law prioritizes the nearest relatives. A single closer relative excludes more distant relatives. Relatives of the same degree inherit equally. If one cannot inherit, the right of accretion applies to the others unless the right of representation supersedes it. Representation is exclusive to intestate succession and the legitimate portion (testate and intestate).
Representation
Representation applies as outlined in Art. 441-7 of the Spanish Civil Code: predecease of the deceased, declaration of unworthiness, and declaration of absence. It allows the children or descendants of the ineligible heir to inherit their share equally. Representation applies in the descending line without limitation and in the collateral line only to relatives of the third degree (children of the deceased’s siblings).
Order of Intestate Succession
1st Order
- Children (marital, non-marital, and adopted) inherit equally. In their absence, their descendants inherit.
- Adopted children have the same rights as biological children within the adoptive family, severing ties with the biological family, except in cases of adoption within a stable marriage or partnership where the adoptee retains inheritance rights from both biological and adoptive parents.
2nd Order
- In the absence of descendants, the surviving spouse or registered partner inherits if the marriage or partnership was valid at the time of death. Annulment, divorce, or legal separation invalidate this.
- If the deceased has children or descendants, the spouse/partner receives a usufruct of the entire estate, a life interest that persists even after remarriage or cohabitation.
3rd Order
of succession: a lack of children and descendants, and spouse or partner, a succession of parents (father and mother) by half. And there is no right of representation in a straight line up, which of them happen to live in the moment of death of the child in the entire inheritance, if only to survive one. If both parents are missing, the parents of these will happen in its own right (grandparents, great grandparents … … ..) to exhaust all degrees of the upline.
4 th order of succession: if the deceased dies without children or descendants, no spouse or partner, and no ancestors, collateral relatives will happen until the fourth grade.
5 th order of succession: a lack of all the relatives mentioned, it happens the Generalitat de Catalunya, which will allocate the property or its value to social care institutions or institutions of culture, preferably in the place of last residence of the deceased in Catalonia. If the estate is urban estates, the Government has to allocate the policy enforcement preferably social housing, either directly or through disposal. The Government always inherits the benefit of inventory and can not repudiate the inheritance.