Intestate Succession in Spain — What Happens Without a Will

What Is Intestate Succession?

Intestate succession (sucesion intestada or sucesion ab intestato) is the legal process that determines how a deceased person’s estate is distributed when they have not left a valid will. In Spain, intestate succession is governed by the Spanish Civil Code, specifically Articles 912 to 958, and by the civil codes of certain autonomous communities with their own succession laws (Catalonia, Aragon, Navarra, the Basque Country, Galicia, and the Balearic Islands).

For most foreign nationals living in Spain — particularly those on the Costa del Sol — the common Spanish Civil Code provisions apply. However, if the deceased was habitually resident in a region with its own succession law, those local rules may take precedence. Additionally, EU Regulation 650/2012 (Brussels IV) adds a cross-border dimension, as it determines which country’s law governs the succession as a whole.

When Does Intestate Succession Apply?

Article 912 of the Civil Code lists the situations in which intestate succession applies:

• The deceased died without making a will
• The will is null or void (e.g., improper execution, lack of capacity)
• The will does not cover the entire estate (intestacy applies to the uncovered portion)
• A condition attached to the inheritance is not fulfilled
• An appointed heir predeceases the testator without substitutes, or repudiates the inheritance

In practice, the most common scenario for expats is simply not having made a Spanish will. Many British, Irish, and other foreign nationals assume their UK or home-country will covers Spanish assets. While a foreign will can be valid in Spain if it meets formal requirements, the probate process becomes significantly more complex, expensive, and time-consuming without a specific Spanish will.

The Order of Intestate Succession

The Spanish Civil Code establishes a strict hierarchy of heirs. Each category excludes the next — meaning if there are any heirs in a higher category, the lower categories receive nothing.

1. Descendants (Articles 930-934)

Children inherit first, dividing the estate equally between them. If a child has predeceased the testator, that child’s share passes to their own children (the deceased’s grandchildren) by right of representation (derecho de representacion). This continues down the generational line indefinitely. Adopted children have the same rights as biological children.

The surviving spouse does not inherit at this level but retains a usufruct over one-third of the estate (tercio de mejora) — the right to use and enjoy those assets during their lifetime without owning them outright.

2. Ascendants (Articles 935-942)

If there are no descendants, the estate passes to the parents of the deceased, divided equally between them. If only one parent survives, they receive the entire estate. If neither parent is alive, the inheritance moves to grandparents. If there are surviving grandparents on both the paternal and maternal sides, the estate is divided equally between the two lines.

At this level, the surviving spouse retains a usufruct over one-half of the estate.

3. Surviving Spouse (Articles 943-945)

If there are no descendants and no ascendants, the surviving spouse inherits the entire estate in full ownership. This is an important point — many expats assume the spouse automatically inherits everything, but under Spanish law the spouse only inherits outright if there are no children and no parents or grandparents alive.

The couple must not have been legally separated at the time of death. Divorce extinguishes succession rights entirely.

4. Collateral Relatives (Articles 946-955)

If there is no surviving spouse, the estate passes to collateral relatives. Siblings inherit first, sharing equally. Half-siblings receive half the share of full siblings. If a sibling has predeceased, their children (nephews and nieces) inherit by representation. Beyond siblings, the estate can pass to aunts, uncles, and more distant relatives — up to the fourth degree of kinship.

5. The Spanish State (Article 956-958)

If no relatives within the fourth degree can be identified, the estate passes to the Spanish State (or the relevant autonomous community). The State must allocate two-thirds of the inherited assets to charitable, educational, or social purposes. In practice, this is extremely rare but does occur when foreign nationals die in Spain without known relatives and without a will.

Forced Heirship (Legitima)

Even where there is a will, Spanish law reserves a portion of the estate for certain heirs. This is the legitima or forced heirship portion. Under intestacy, the entire estate is distributed according to the legal order above, but understanding the legitima is essential context because it limits testamentary freedom even when a will exists.

The forced heirship rules reserve two-thirds of the estate for the children of the deceased. The first third (tercio de legitima estricta) must be divided equally among all children. The second third (tercio de mejora) can be distributed among children as the testator chooses, but must remain with descendants. Only the final third (tercio de libre disposicion) can be freely bequeathed to anyone.

If there are no descendants, the parents are entitled to one-third of the estate (or one-half if there is no surviving spouse). British expats wishing to avoid forced heirship can make an election under the Brussels IV Regulation to apply the law of their nationality, which has no forced heirship provisions.

The Declaration of Heirs (Acta de Notoriedad)

When someone dies intestate in Spain, the heirs cannot simply present themselves and claim the assets. A formal legal process is required to establish who the lawful heirs are. For intestate estates, this is done through an Acta de Notoriedad (Declaration of Heirs), processed by a Spanish notary.

The process requires:

• The original death certificate (certificado de defuncion)
• A certificate of last wills (certificado de ultimas voluntades) from the Ministry of Justice, confirming no Spanish will exists
• Family book or equivalent documentation proving the relationship of the heirs
• Two witnesses who knew the deceased and their family situation
• Identification documents of all heirs

The notary reviews the documentation, takes witness statements, and issues the declaration identifying the lawful heirs and their respective shares. This typically takes 4 to 8 weeks. The declaration must then be presented to the Land Registry, banks, and other institutions holding the deceased’s assets.

For foreign nationals, additional documentation is usually required: an apostilled death certificate, apostilled family certificates, certified translations, and often a certificate of law (certificado de ley) from the deceased’s home country confirming its succession rules. This adds both cost and delay.

With a Will vs Without: A Practical Comparison

Factor	With Spanish Will	Without Will (Intestate)
Probate document	Copy of will from notarial protocol	Declaration of Heirs (Acta de Notoriedad)
Who inherits	As directed by the testator (subject to legitima)	Fixed legal order (Civil Code)
Typical timeline	3–6 months	6–12 months or longer
Additional legal costs	Standard conveyancing fees	Notarial declaration + additional documentation
Brussels IV election	Can elect law of nationality in the will	Cannot elect — law of habitual residence applies
Forced heirship	Can be avoided via Brussels IV election	Spanish forced heirship applies if Spanish law governs

Common Scenarios for Expats

Dual Estate: Assets in the UK and Spain

Many British expats own property in both countries. Without a Spanish will, the UK will may or may not be accepted for Spanish probate, but the process is significantly more complex. The ideal approach is to have two complementary wills: a UK will covering UK assets and a Spanish will covering Spanish assets, each explicitly excluding the other jurisdiction’s assets. Both should be coordinated to avoid conflict, and the Spanish will should include a Brussels IV election if the testator wishes to avoid forced heirship.

Unmarried Partners

Under Spanish intestacy law, unmarried partners have no automatic inheritance rights — regardless of how long the relationship has lasted. Some autonomous communities recognise registered partnerships (parejas de hecho) and grant limited succession rights, but this varies significantly. Without a will, an unmarried partner would receive nothing under the Civil Code; the estate would pass to the deceased’s blood relatives. A will is essential for unmarried couples with assets in Spain.

Applying Brussels IV

Under Brussels IV, the default rule is that the succession law of the country where the deceased was habitually resident applies. For a British expat living in Spain who dies intestate, this means Spanish intestacy law would apply to their worldwide estate (unless a non-EU country’s courts assert their own jurisdiction). The only way to elect the law of your nationality is through a valid will. Dying intestate removes this option entirely.

Frequently Asked Questions

Next Steps

The single most effective step you can take to protect your estate and your family is to make a Spanish will. It costs a fraction of what intestate probate will cost your heirs, and it gives you control over who inherits, how, and under which country’s law. Use our inheritance tax calculator to estimate the tax your heirs would face, and speak with a specialist about structuring your estate efficiently.

CostaLuz Lawyers regularly advises families on intestate succession in Spain.

Reviewed by María Luisa de Castro, CEO at CostaLuz Lawyers — specialist in cross-border estate & inheritance law — Updated 2026

This is general information, not definitive legal advice — every case requires individual analysis.