4/12/2020
In Spain, the Spanish civil code doesn’t apply in all autonomous regions. There are certain regions that have their own regional legislation. These are Aragon, Catalonia, the Balearic Islands, Galicia, Navarra, the Basque Country and partially Valencia and Fuero de Baylío (Extremadura).
In our case we’re going to focus on the peculiarities regarding inheritances in Catalonia, where the Catalan civil code is applied instead of the Spanish one.
First of all the applicable law to the inheritance must be defined and as for those who have died after August 17, 2015, Catalan law will apply as long as the last habitual residence was in Catalonia or that the deceased had chosen Catalan law in his will.
Succession order in Catalonia:
If Catalan law applies to the inheritance because, for example, the deceased was a resident in Catalonia or had chosen Catalan law in his will, then the succession is as follows:
- Children and grandchildren inherit first, but if they concur with the spouse or partner, the latter will have a right of use (usufruct) to the inheritance. (1st grade)
- If there were no children nor grandchildren, the inheritance would pass to the spouse or partner, however maintaining the parents’ right to a lawful share.
- If there are no children, no grandchildren, no spouse, the deceased’s parents will inherit. (2nd grade)
- If there were none of the above, then the closest collaterals would inherit, that is, the siblings and the children of siblings. (3rd grade)
- If there are no siblings or children of siblings, then the other collaterals will inherit until the cousins (4th grade).
- If there are non of the above, the Catalan government will inherit.
How are the degrees calculated?
- From father to son there’s one grade and vice versa.
- From the father to the grandson there are two degrees and vice versa
- From brother to brother there are two degrees
- From uncle to nephew there are three degrees
- Among cousins there are four degrees
Can a father disinherit his son completely according to Catalan law?
A lawful heir cannot be excluded from an inheritance unless there’s a legitimate reason. In other words, the legislation offers some protection to certain people in order to avoid unfair disinheritance. We call them forced or lawful heirs and in the case of inheritances in Catalonia, there’s a specific regional regulation that is to be applied.
In Catalonia, the lawful heirs with a right to its lawful share are, first of all, the children. In case there are no children, the parents are the lawful heirs.
If the Spanish civil code had been applied, the widower would also have had a right to a lawful share. Its lawful share would have been usufruct to 1/3 of the inheritance in case of children and, 1/2 in case of parents but no children. Consequently, the widower’s right is more limited in Catalonia compared to the Spanish civil code.
When is it allowed to disinherit a lawful heir?
The Catalan Civil Code states, in article 451-16, five legitimate reasons of disinheritance, and they are;
- The legitimate reasons stated in article 412-3 are acts of violence with intent to harm, physically and morally, the deceased or someone in its closest circle, such as partner, descendants or ancestors:
- If the lawful heir hasn’t taken care of the deceased when there has been a legal obligation to provide it.
- If the lawful heir has seriously mistreated the deceased
- If the custody that belonged to the lawful parent over the deceased has been suspended or deprived
- If there is a proven and continuous absence of a family relationship between the deceased and the heir, and this has been causes by solely the lawful heir.
How do you accept and claim the lawful share and within what timeline?
Firstly, an acceptance of the lawful share isn’t necessary since it’s assumed to be accepted as long as there is no resignation. The claim of the lawful share is made to the deceased’s heirs, and they are also the ones responsible for paying the lawful share to the lawful heir. If they don’t comply with their legal obligation, you may claim your lawful share judicially.
The time limit for claiming your lawful share according to Spanish law is 30 years but according to Catalan law, it’s only 10 years. However, the time limit can be interrupted with a request to the heirs and in that case, the 10- or 30-year period starts again.
If you are interested in more information about the right to the lawful share according to generic law in Spain, please have a look at this article.
Louise Malmberg, Swedish Law Degree
louisemalmberg@espadagerlach.com
+34 684317708
In collaboration with:
Alejandro Espada Gerlach, Lawyer.
a.espada@espadagerlach.com
+34 609376006
ESPADA Gerlach & abogados
Tel. +34 93 301 27 41
C/Provenza 253, entlo. 2
08008 Barcelona
Spain