Dying without a will in Spain: who inherits, what the surviving spouse receives and how a notary declares the heirs

He had lived in Los Cristianos for eleven years, owned the flat together with his wife and never got round to making a will. Their daughter lives in Leeds, their son in Las Palmas. A week after the funeral the bank froze the account that was in his name alone and asked for a paper none of them had heard of: the declaration of heirs. His brother owns a flat in Corralejo, lives in Hamburg and has no will either; when his turn comes, the same question will get a different answer, because a different country's law will decide it. This guide is for an estate with assets in Spain and no will. It sets out which law names the heirs, who they are under the Spanish Civil Code, what the surviving spouse receives, how a notary declares the heirs and how long that takes, and which papers are needed when the family or the documents are abroad. Quotations are in Spanish with the reading in English.

Which law decides: where the deceased lived

Since 17 August 2015 one European regulation answers that question for the whole estate: la ley aplicable a la totalidad de la sucesión será la del Estado en el que el causante tuviera su residencia habitual en el momento del fallecimiento, the law applicable to the succession as a whole is that of the State in which the deceased had his habitual residence at the time of death (Regulation (EU) 650/2012, article 21). Nationality does not come into it. A person may choose the law of his nationality instead, but the choice deberá hacerse expresamente en forma de disposición mortis causa, must be made expressly in a disposition on death (article 22): without a will, nobody chose.

So the two brothers part ways. The one who lived in Los Cristianos died habitually resident in Spain, and Spanish law names his heirs: for the flat in Tenerife and, in the eyes of the regulation, for everything else he owned. In the Canary Islands that law is the Civil Code, since the islands have no civil law of their own and a foreigner falls under the law of the part of Spain where he lived (article 36). The one who lives in Hamburg is in the opposite case: German law decides who inherits his flat in Corralejo, and that is the law a Spanish notary or registrar will have to follow. An owner who lives in England is a third case. English law applies by residence, but its own rules send land back to the law of the country where it lies, and the regulation accepts that return when it leads to the law of a Member State (article 34): the Spanish flat comes back under Spanish law. Our guide to the will of a foreign resident explains that step. The rest of this guide follows the first brother: Spanish law, no will.

Who inherits under the Civil Code

Without a will, la ley defiere a los parientes del difunto, al viudo o viuda y al Estado, the law gives the estate to the relatives of the deceased, to the widower or widow and to the State (Civil Code, article 913), in an order in which each group excludes the next.

• Children and their descendants. Los hijos del difunto le heredarán siempre por su derecho propio, dividiendo la herencia en partes iguales, the children of the deceased always inherit in their own right, dividing the estate in equal parts (article 932), with no distinction of sex, age or filiation (article 931). The children of a child who died first take that child's share between them (article 933).
• Parents and other ascendants. A falta de hijos y descendientes del difunto le heredarán sus ascendientes, failing children and descendants, his ascendants inherit (article 935): the father and the mother in equal parts, or the survivor alone (articles 936 and 937).
• The spouse. En defecto de ascendientes y descendientes, y antes que los colaterales, sucederá en todos los bienes del difunto el cónyuge sobreviviente, failing ascendants and descendants, and before the collaterals, the surviving spouse succeeds to all the assets of the deceased (article 944). The call does not happen si el cónyuge estuviere separado legalmente o de hecho, if the spouse was separated legally or in fact (article 945).
• Brothers and sisters, nephews and nieces. They come next, ahead of other relatives (article 946). A brother or sister who shares only one parent with the deceased takes half the share of one who shares both (article 949).
• Other relatives. Uncles, aunts, first cousins and the rest inherit hasta el cuarto grado, más allá del cual no se extiende el derecho de heredar abintestato, up to the fourth degree, beyond which the right to inherit on intestacy does not extend (article 954).
• The State. When nobody is left, the State inherits and applies two thirds of the estate to social purposes (article 956).

One name is missing from that list. The Civil Code gives an unmarried partner nothing on intestacy, registered or not; what a couple can do about it while both are alive is in our guide to the pareja de hecho.

What the surviving spouse receives

Two different things, and the first is not inheritance at all. If the couple were married under the Spanish community-property regime, what they earned and bought during the marriage is common, and its gains les serán atribuidos por mitad al disolverse aquella, are attributed to them by halves when the community is dissolved (article 1344). Half of those assets was already the survivor's; only the other half, with whatever belonged to the deceased alone, is the estate. A couple who married abroad may be under a different regime, their own country's or one they chose, and that is settled first; our note on the property regime of international couples explains how.

On the estate itself, the spouse who was not separated has a right of use and income, not ownership, whenever there are children or parents.

• With children or descendants, the spouse tendrá derecho al usufructo del tercio destinado a mejora, has the right to the usufruct of the third set aside for improvement (article 834).
• With no descendants but with ascendants, tendrá derecho al usufructo de la mitad de la herencia, the right is to the usufruct of half the estate (article 837).
• With neither, the spouse is the heir of everything, as the list above says.

For the family in Los Cristianos that means the following. If the flat was community property, half of it is the widow's already. The other half goes to the daughter and the son in equal parts, and the widow holds for life the usufruct of a third of what her husband left. The children own, but they cannot sell free of her right, because until it is paid estarán afectos todos los bienes de la herencia al pago de la parte de usufructo que corresponda al cónyuge, all the assets of the estate are bound to the payment of the share of usufruct that belongs to the spouse (article 839). The same article lets the heirs satisfy it instead with a life annuity, the income of particular assets or a sum of money, by agreement or, failing that, by order of a court.

The declaration of heirs: a notary, two witnesses and twenty working days

With no will, somebody has to say officially who the heirs are, and since 2015 that is the work of a notary, whoever the relatives are. Those who can ask are the descendants, the ascendants, the spouse or partner and the collateral relatives, and they may choose the notary: one competente para actuar en el lugar en que hubiera tenido el causante su último domicilio o residencia habitual, o donde estuviere la mayor parte de su patrimonio, o en el lugar en que hubiera fallecido, siempre que estuvieran en España, a elección del solicitante, competent to act in the place where the deceased had his last domicile or habitual residence, or where most of his estate is, or in the place where he died, provided these are in Spain, at the applicant's choice, or a notary of an adjoining district (Ley del Notariado, article 55).

The request names the people believed to be the heirs and brings the documents that prove their kinship, together with proof of the death and of the fact that it happened without a will, mediante información del Registro Civil y del Registro General de Actos de Última Voluntad, by means of information from the Civil Registry and from the General Registry of Last Wills (article 56). The act must also contain la declaración de dos testigos, the statement of two witnesses who can affirm, from their own knowledge or because it is commonly known, the facts the act is to declare: who the relatives are, and that there are no others; relatives may be witnesses if they have no direct interest in the estate. For a foreign family the notary will also establish nationality y, en su caso, la ley extranjera aplicable, and, where applicable, the foreign law that governs.

Then comes a wait fixed by the Act. Ultimadas las anteriores diligencias y transcurrido el plazo de veinte días hábiles, a contar desde el requerimiento inicial, once those steps are completed and the period of twenty working days has passed, counted from the initial request, the notary states whether the facts are proved and, if they are, declares who the heirs are and what the law gives each of them. If the identity or the address of someone with a possible right cannot be established, the notary must publish a notice in the Official State Gazette and on the notice boards of the town halls concerned, and anyone may object within a month; the twenty days then run from the end of that month.

The act says who inherits. It does not hand anything over. For that the heirs accept the estate and divide it in a deed, and nobody is obliged to accept: our guide to renouncing an inheritance explains when refusing is the better choice. The act is, though, the document the bank was asking for, and it is what the Land Registry requires: El título de la sucesión hereditaria, a los efectos del Registro, es el testamento, el contrato sucesorio, el acta de notoriedad para la declaración de herederos abintestato, the title of succession, for the purposes of the Registry, is the will, the succession agreement, the act of notoriety for the declaration of heirs on intestacy (Ley Hipotecaria, article 14).

Three certificates, and fifteen days

Every Spanish succession starts with the same three papers, whatever the nationality of the deceased, because a foreigner may have signed a Spanish will that the family never knew about.

• The death certificate. It is issued by the Civil Registry, where the death is recorded.
• The certificate of last wills. It says whether any will is recorded and before which notary, and it is issued to anyone who proves the death, siempre que hayan transcurrido quince días desde la fecha de la defunción, provided fifteen days have passed since the date of the death (Notarial Regulation, annex two, article 5).
• The certificate of life-insurance contracts. It lists the policies in which the deceased was the insured. The request sólo podrá presentarse una vez que hayan transcurrido quince días hábiles desde la fecha de defunción, may only be filed once fifteen working days have passed since the date of death (Real Decreto 398/2007, article 12); the registry answers within seven working days (article 13) and keeps the data available for five years (Ley 20/2005, article 6).

So the notary cannot be asked for anything in the first two weeks. They are best spent collecting the family's own papers.

When the family or the papers are abroad

Kinship is proved with certificates: the birth certificates of the children, the marriage certificate of the spouse. When they come from another country, two questions arise.

• Is the document authentic? The standard is the one the Civil Procedure Act sets for any foreign public document: it must carry la legalización o apostilla y los demás requisitos necesarios para su autenticidad en España, the legalisation or apostille and the other requirements needed for its authenticity in Spain (Ley de Enjuiciamiento Civil, article 323). Certificates of birth, death and marriage issued in another EU country are the exception: since February 2019 they quedarán exentos de toda forma de legalización y trámite similar, are exempt from all forms of legalisation and similar formality (Regulation (EU) 2016/1191, article 4). A British certificate, like any from outside the Union, needs its apostille or its legalisation.
• Is it in Spanish? If it is not, the same Act's rule is that se acompañará la traducción del mismo, its translation must accompany it (article 144), and in practice notaries ask for a sworn one. A certificate from an EU country can come with a multilingual standard form, and no translation is then required if the notary finds the form sufficient (Regulation (EU) 2016/1191, articles 6 and 7).

The heirs themselves do not have to come. A power of attorney signed before a notary in their own country, with its apostille and its translation, lets someone in Spain sign for them.

Assets in more than one country

When the deceased lived in Spain and also left an account in Germany or a house in France, the Spanish notary can issue one more document. The European Certificate of Succession se expedirá para ser utilizado en otro Estado miembro, is issued for use in another Member State, and it takes effect in all of them sin necesidad de ningún procedimiento especial, without any special procedure being required (Regulation (EU) 650/2012, articles 62 and 69). In Spain compete al notario que declare la sucesión o alguno de sus elementos, it falls to the notary who declares the succession or any of its elements to issue it (Ley de Enjuiciamiento Civil, final provision twenty-six). Its certified copies have un plazo de validez limitado a seis meses, a period of validity limited to six months (article 70), so it is asked for when the foreign bank or registry is ready to receive it. It works in the other direction too: for the heirs of someone who lived in another country bound by the regulation, a certificate issued there is a valid title for the Spanish Land Registry (Ley Hipotecaria, article 14). Ireland, Denmark, the United Kingdom and every country outside the Union are not bound by it and have no such certificate, and what their documents need in order to be used in Spain has to be looked at case by case.

The calendar

The tax clock is the one that does not wait for the notary. The return is due en el de seis meses, contados desde el día del fallecimiento del causante, within six months, counted from the day of the death (Real Decreto 1629/1991, article 67), and an extension for the same period can be requested, but only dentro de los cinco primeros meses del plazo de presentación, within the first five months of that period (article 68), and it carries late-payment interest. What is payable in the Canary Islands is in our note on inheritance tax in the Canaries, and for parents who would rather pass assets on while they are alive, the comparison is in the one on gifts to children.

A will changes almost everything on this page: who inherits, how much the spouse receives, which country's law applies. Without one the Civil Code decides, and it decides the same for every family.

What our inheritance team does

We settle Spanish estates for heirs who live anywhere, from our offices in Costa Adeje and Corralejo: the certificates, the notarial declaration of heirs, the inheritance-tax return and its deadline, the transfer of the property and its entry in the Land Registry, with the foreign documents, apostilles and sworn translations dealt with on the way. Most matters are handled entirely by power of attorney, without the heirs travelling. We agree a plan and a fee before any work begins. The service is described on our inheritance law page, and you can write to us in your own language.

Common questions

My husband died without a will. Do I inherit the flat?

Not if he left descendants or ascendants. His children inherit, or failing descendants his parents, and you receive the usufruct of a third of the estate in the first case, or of half in the second. If the flat was community property, half of it was already yours. With neither descendants nor ascendants, you inherit everything.

We are British, or German. Does Spanish law really apply?

If the deceased lived in Spain, yes. Without a will the law of the last habitual residence governs the whole estate, whatever the nationality. Choosing the law of one's nationality is possible, but only in a will or a similar disposition on death.

How long does the declaration of heirs take?

The notary cannot conclude before twenty working days have passed since the request, and the certificate of last wills cannot be asked for until fifteen days after the death. Added together, the earliest possible date is about six weeks after the death; a missing heir or papers from abroad add to that.

Can the heirs do it without travelling to Spain?

Yes. A power of attorney signed before a notary abroad, apostilled and translated, lets a representative in Spain request the declaration, accept the estate and sign the deeds.

We lived together but never married. Do I inherit?

Not under the Civil Code, which gives an unmarried partner no share on intestacy. Only a will could have done it.

General information on the law as it stands in October 2026 (Regulation (EU) 650/2012, articles 21, 22, 34, 36, 62, 69 and 70; Civil Code, articles 834, 837, 839, 913, 931 to 937, 944 to 946, 949, 954, 956 and 1344; Ley del Notariado, articles 55 and 56; Ley Hipotecaria, article 14; Notarial Regulation, annex two, article 5; Ley 20/2005, article 6, and Real Decreto 398/2007, articles 12 and 13; Ley de Enjuiciamiento Civil, articles 144 and 323 and final provision twenty-six; Regulation (EU) 2016/1191, articles 4, 6 and 7; Real Decreto 1629/1991, articles 67 and 68). It is not advice on a particular estate: the law that applies and the shares depend on where the deceased lived, on the family and on the couple's property regime.