Spanish Crown Succession: Rules and Regency

Posted on Mar 10, 2025 in Law & Jurisprudence

Article 57.1 of the Spanish Constitution (CE) states that the Crown of Spain is inherited by the successors of HM Juan Carlos I de Borbón, the legitimate heir of the historic dynasty. Upon the death of the King, the heir automatically assumes the Crown, regardless of age. The CE addresses the scenarios of a minor King (Article 59) and a disabled King (due to illness, age, etc.). In such cases, the King retains the title, but a Regent performs their functions.

Succession Event

The succession event is the unique and decisive moment in the succession to the Crown. The approach adopted is based on traditional Spanish succession rules, confirmed by the Order of Alcalá of 1348. It rests on three principles:

  1. Preference for the direct line over the collateral line.
  2. Preference of males over females, and older over younger within the same line.
  3. The principle of representation: children of a predeceased heir inherit the Crown in preference to other children of the King.

Prince of Asturias (Article 57.2 CE)

The Crown Prince, from birth or from the event triggering their claim, holds the title of Prince of Asturias and other titles traditionally held by the heir to the Crown of Spain. Article 61.2 CE stipulates that the Crown Prince, upon reaching the age of majority, must swear an oath before the Parliament to faithfully carry out their functions, observe and enforce the Constitution and laws, and protect the rights of citizens and Autonomous Communities, as well as swear loyalty to the King.

Any questions of fact or law arising in the order of succession to the Crown are resolved by an Organic Law.

Anyone with the right to succession who marries against the express prohibition of the King and Parliament is excluded from succession to the Crown, along with their descendants. This contrasts with Article 32.1 CE regarding the right to marry, in connection with Article 14 CE.

Cases in which succession occurs:

  • Death
  • Abdication
  • Disqualification
  • Resignation

Regency (Articles 58, 59, 60, 61 CE)

The CE primarily addresses two types of Regency: for the minority of the King and for disqualification. The theory of minority, according to the CE, indicates that succession is automatic, with the heir becoming King even if they are a minor. Disqualification is foreseen when the King is unable to exercise their authority, requiring that this inability be recognized by Parliament. Situations covered include civil disability, sickness, and absence.

Guardianship of the Minor King (Article 60 CE)

Article 60 CE regulates the guardianship of the minor King, treating it differently from private law. According to Tomás Villarroya, there are key distinctions:

  • The CE only provides for the tutelage of a minor King, not one who is physically or mentally disabled.
  • Custody of the King is simple and direct, not a complex organization of civil law.
  • It may apply to the father or mother while the King remains widowed.

Three cases of guardianship are considered:

  1. Testamentary Guardianship: Applicable to the person designated by the deceased King in their will, who must be Spanish and of legal age. There has been discussion on whether the testamentary appointment requires parliamentary endorsement.
  2. Legitimate Guardianship: Entrusted by the CE to the King’s widowed parent.
  3. Dative Guardianship: If neither of the above applies, the guardian is appointed by the Parliament in a joint session. Tomás Villarroya notes that, unlike testamentary guardianship, the Parliament may appoint a foreign person if they deem them sufficiently trustworthy.

Guardianship concludes with the King’s coming of age. The resignation of the guardian, admitted by the Parliament, or parliamentary removal, cannot be ruled.