Legal Capacity, Family, and Inheritance in Civil Law
Person and Legal Capacity
Legal Capacity and Capacity to Act
The law considers every person a subject of rights. A person has legal capacity and capacity to act, determined by birth (Articles 29 and 30 of the Civil Code).
Article 30 states that a fetus is considered born if it has lived for 24 hours entirely detached from the womb. This article raises two points:
- The outdated notion that a woman could conceive a monster.
- The conflict between a woman’s right to bodily autonomy and the right to abortion.
Capacity to Act
Traditionally, capacity to act was limited by age, illness, and sex. Current legislation considers a person of legal age at 18 years old, although emancipation can be achieved at 16, as regulated by Article 323 of the Civil Code.
Legal Capacity
Legal capacity ends with the death of an individual. When certain legal purposes cannot be achieved by a single person, legal status is granted to collective entities (corporations, public entities, associations, or foundations). These entities can acquire property, institute legal action, and contract obligations. However, they cannot hold rights exclusive to individuals, such as those related to family law.
Foreigners
Foreigners have a special regime regarding legal capacity, subject to legislative changes concerning the acquisition and loss of Spanish nationality, residence permits, and workspaces. Article 27 of the Civil Code states that foreigners in Spain enjoy the same rights as Spanish nationals, except as provided by special laws and treaties.
Family and Marriage
The Family
The family is a group of people formed by a couple (man and woman), their children, and other relatives living together. Its regulation involves biological, moral, religious, economic, and power aspects.
The Right of the Family and its Division
This right regulates personal and property relations within the family, as outlined in the Spanish Constitution and the Civil Code. Article 39 of the Constitution states that public authorities ensure the social, economic, and legal protection of the family. The main areas of family law are:
- Marriage and personal relations of spouses.
- Parent-child relations and parental rights.
- Provision of food to relatives.
- Guardianship and curatorship, which substitute for parental authority when parents are absent.
The Civil Code declares all children equal, regardless of whether their affiliation is matrimonial or non-matrimonial, and grants full adoption the same effects as biological parenthood.
Marriage
Traditionally, marriage was the union of a man and a woman. With the 2005 amendment to the Civil Code, same-sex marriage was included with the same purpose and requirements as heterosexual marriage. Currently, the two main forms of marriage are civil and religious.
Marriage can be terminated by death, divorce, or separation. Due to its historical tradition, marriage is considered an institution with legal implications in both public and private spheres.
The Patrimonial Economic System
Partners decide the economic system of their marriage through a prenuptial or postnuptial agreement. They can agree on separation of property or a participation regime. If no agreement is established, the default system is community property, where assets acquired during the marriage are divided equally upon dissolution. Exceptions include property owned before the marriage or received as gifts or inheritance.
Inheritance
Inheritance Law
Death signifies the end of an individual and the transfer of their property, rights, and debts. Inheritance can be testamentary (through a will) or legitimate (in the absence of a will).
Children and spouses have the right to a share of the estate called “legitima.” Children’s legitima constitutes two-thirds of the estate. The remaining third is freely disposable by the testator.
In the absence of a will, inheritance law dictates the order of succession:
- Direct descendants (children).
- Ascendants (parents, grandparents).
- Spouse.
- Collateral relatives (siblings, cousins).
- The State, if no relatives exist.
Donations
Donations are acts of generosity from a donor to a donee. They are subject to formalities and can be revoked under certain circumstances, such as the subsequent birth of children or the donee’s ingratitude (e.g., committing a crime against the donor). Remunerative or onerous donations are those made in recognition of merits or services that do not constitute debts or impose a burden less than the donation’s value.