Dying Without a Will in Spain: Intestate Succession and the Codigo Civil Default Rules for Non-Resident Property Owners (2026)

If you own property in Spain and die without a valid will, the Codigo Civil intestate rules in Articles 912 to 958 decide who inherits. Descendants come first, then ascendants, then the surviving spouse, then siblings and collaterals to the fourth degree, and finally the State. A foreign owner habitually resident in Spain also loses the right to elect their national law under EU Regulation 650/2012, because that election requires a will. The result is a rigid statutory distribution that may not match your intentions.

When does intestate succession apply in Spain?

Article 912 of the Codigo Civil triggers intestate succession in four situations: when someone dies with no will, with a null will, with a will that fails to name heirs for all or part of the estate, or when the named heir predeceases the testator, repudiates, or is incapacitated. In each case the statutory distribution order replaces the testator’s choice.

The first situation, death with no will at all, is the most straightforward. The second, a will that does not dispose of all assets, produces a split succession: the testate portion follows the will and the intestate portion follows Articles 930 to 958. The third and fourth cover wills that name an heir who cannot or will not inherit.

Article 913 confirms that, absent testamentary heirs, the law defers the inheritance to the deceased’s relatives, the surviving spouse, and ultimately the State. Article 914 extends the incapacity rules from testamentary succession to intestate succession equally.

For a non-resident inheriting Spanish property, the practical consequence is that the entire estate, including Spanish real estate, passes through this statutory cascade. The process requires a notarial declaration of heirs (declaracion de herederos abintestato) to establish who is entitled.

What is the order of inheritance under the Codigo Civil?

Articles 930 to 958 establish a strict priority order: descendants first, then ascendants, then the surviving spouse, then siblings and their children, then other collaterals up to the fourth degree, and finally the State. Within each class, the nearest in degree excludes the more remote, subject to the right of representation.

The table below sets out the full order:

Priority	Who inherits	Governing articles	Share
1	Descendants (children, grandchildren)	930-934	Equal shares; grandchildren by representation
2	Ascendants (parents, grandparents)	935-941	Father and mother equally; nearest if no parents
3	Surviving spouse (no descendants or ascendants)	944	All estate, unless legally or de facto separated
4	Siblings and their children	946-951	Full siblings take double portion of half siblings
5	Other collaterals to 4th degree	954-955	Equal shares, no line preference
6	State	956-958	Entire estate; two-thirds for social purposes

Article 921 sets the proximity rule: the nearest relative in degree excludes the more remote, except where the right of representation applies. Article 931, as reformed by Ley 11/1981, provides that children and descendants succeed without distinction of sex, age, or filiation, eliminating the historic preference for legitimate over natural children.

What usufruct does the surviving spouse receive?

When the surviving spouse concurs with descendants, Article 834 grants a usufruct over one-third of the estate. With ascendants only (no descendants), Article 837 grants a usufruct over one-half. Only when no descendants and no ascendants survive does the spouse inherit full ownership under Article 944.

The spouse’s position depends on who else survives:

Scenario	Spouse’s right	Article
With descendants	Usufruct of one-third (tercio de mejora)	834
With ascendants, no descendants	Usufruct of one-half	837
No descendants, no ascendants	Full ownership of all estate	944

Article 834 requires the spouse not to be legally or de facto separated at death. Article 835 preserves the spouse’s rights if a separation was followed by a formal reconciliation notified to the court or notary. Article 945 mirrors this rule for the Article 944 succession: a legally or de facto separated spouse is excluded.

Article 839 gives the heirs a mechanism to satisfy the usufruct: they can assign a life annuity, the products of specific assets, or a cash capital. Until this is done, all estate assets remain charged with the spouse’s usufruct. This is a critical practical point for partitioning an inheritance, where the family must decide whether to maintain the usufruct or commute it to a capital payment.

How does the right of representation work?

Article 924 defines the right of representation as the right of a deceased person’s relatives to inherit in their place. It always operates in the descending line (Article 925), so if a child predeceases the parent, that child’s children inherit the child’s share by stirpes. It never applies in the ascending line.

Article 926 ensures that representatives inherit no more than the person they represent would have received. Article 927 adds a practical rule: nephews inheriting alongside their uncles do so by representation, but if nephews inherit alone, they share equally by heads.

The right of representation is what prevents a branch of the family from losing its inheritance simply because the direct heir died before the deceased. Without it, a predeceased child’s descendants would take nothing.

What happens if there are no relatives at all?

Article 956 provides that the State inherits the entire estate when no descendant, ascendant, spouse, sibling, or collateral within the fourth degree survives. The State is deemed to accept under benefit of inventory (Article 957) and must obtain an administrative declaration of heir (Article 958). Two-thirds of the estate value goes to social interest purposes.

This is the terminal outcome of the intestate cascade. The fourth-degree limit in Article 954 means that cousins and more distant relations beyond the fourth degree have no intestate right. The State’s inheritance is not a penalty but a default, and the earmarking of two-thirds for social purposes under Article 956 (as reformed by Ley 15/2015) reflects the public-interest nature of the rule.

Can you choose your national law instead?

Article 22 of EU Regulation 650/2012 lets a person choose the law of the state whose nationality they possess, but only by express declaration in a will. Without a will, Article 21 applies the law of habitual residence at death, typically Spanish law for a resident of Spain. The election is available to nationals of non-EU countries too, as confirmed by the Court of Justice.

This is the hidden cost of dying intestate for a foreign property owner. If you are a German national living in Marbella and die without a will, Article 21 applies Spanish law to your entire estate because your habitual residence is Spain. Spanish forced heirship rules determine how much each child receives, and the surviving spouse’s usufruct under Articles 834 to 838 applies regardless of German law.

Had you made a Spanish will with an Article 22 election of German law, German succession rules would govern instead. The election must be express and made in a valid will. There is no intestate election. This is why inheritance planning for non-resident property owners starts with a will that includes the professio iuris clause.

A worked example: a German owner in Marbella

Consider a German national, habitually resident in Marbella, who dies owning a Spanish apartment worth EUR 600,000. She has a surviving spouse and two adult children. She left no will.

Under Spanish intestate law:

• The two children inherit the apartment in equal shares (Article 932), each receiving 50 per cent ownership.
• The surviving spouse receives a usufruct over one-third of the estate (Article 834), the tercio de mejora.
• The children can satisfy the usufruct under Article 839 by assigning a life annuity, specific assets’ products, or a cash capital.

Had she made a will electing German law under Article 22, German succession rules would have applied to the entire estate. Many national laws give the surviving spouse a direct ownership share alongside the children, rather than a usufruct over one-third. The structural difference matters: under Spanish intestate law the spouse has a life interest in one-third of the estate; under many other national laws the spouse is a co-owner.

A will with an Article 22 election would have let the owner choose which regime governs her estate. Without one, Spanish law applies by default, and the opportunity to elect is lost.

The heirs must also settle Spanish inheritance tax on the estate. In Andalusia, a bonificacion of up to 99 per cent may apply for close relatives, effectively reducing the tax to near zero. See our guide to inheritance tax in Andalusia for non-residents.

Practical steps for non-resident property owners

The single most effective step is to make a Spanish will that includes an Article 22 election of national law. This lets you choose whether Spanish or home-country succession rules govern your estate, and it avoids the rigid intestate distribution order. A will also simplifies the probate process for your heirs.

Without a will, your heirs face a declaracion de herederos abintestato, a notarial process to establish who inherits. This can be straightforward for nuclear families but becomes complex for blended families, unmarried partners, or heirs in different countries. The pending estate phase (herencia yacente) between death and acceptance adds delay and risk.

A will also lets you name a testamentary executor to manage the succession, appoint a contador-partidor for partition, and make specific legacies that the intestate rules cannot accommodate. The cost of a Spanish notarial will is modest compared with the cost of an intestate cross-border succession.