Inheritance without a will and children from different marriages: who is entitled to what in Spain

The distribution of an inheritance without a will where there are children from different marriages is carried out equally, without distinguishing between children born within or outside marriage.

Distribution of an intestate estate between a widow or widower and children

In Spain, approximately 47% of couples who marry eventually divorce. Of that percentage, around 54% had children. Although there are no official statistics on the matter, it is clear that many of them later rebuild their lives with another partner and, in many cases, decide to have more children.

Is this your situation? If so, you may at some point have wondered what will happen to your estate in the future, especially if you have not made a will. In any case, what you should understand is that the Spanish Civil Code does not distinguish between children, even if they were born outside marriage.

Intestate succession with children from different marriages

As we mentioned, the Civil Code does not distinguish between children, which means that they are all treated equally and therefore have the same inheritance rights. All of them, without exception, are considered forced heirs, so the estate will be divided equally among them.

The advantage of making a will is that this does not necessarily have to be the case. If you do make a will, the estate will be distributed as follows:

• Legitime third: divided equally among all children, regardless of whether they are from a first, second or subsequent marriage, or born outside marriage.
• Improvement third: may be distributed among the children in whichever way the testator considers most appropriate. In fact, one child could receive all of it while the others receive nothing.
• Free disposal third: the testator may leave this part to anyone they wish, regardless of whether they are a legal heir or not. This third is often used to compensate third parties, such as the parent of a child born outside marriage or a stepchild who was raised within the family but has no blood relationship with the deceased.

Inheritance without a will between spouse and children

Almost any intestate inheritance involving children tends to create problems regarding the issue we have just mentioned. Imagine that you had three children in your first marriage and later divorced. You bought a house and moved there. Years later, you rebuilt your life with someone who already had children. The two of you did not have any more children together, but she moved in with you, although you never married.

In this situation, if you were to die without a will, your partner could face difficulties. Since the property would pass to your biological children, they could force its sale, begin charging rent to your partner, or even ask her to leave. Even if you had married, the situation would not be much better, since the only thing she would inherit would be the usufruct over the improvement third if you had been married under a community property regime.

What is the usufruct over the improvement third?

The usufruct over the improvement third grants the surviving spouse the right to enjoy part of the inheritance, even without owning the assets themselves. Every case is different and requires a personalised assessment, but it may involve the use of a property, the benefits of a bank account, or rental income generated by a property, for example.

As a general rule, the usufruct over the improvement third is settled by agreement between the heirs, either by compensating its value financially or by granting certain assets to the surviving spouse. Even where there is no will, it is advisable to formalise this arrangement by means of a notarial deed.

To understand it better, let us look at an example. Imagine that, at the time of your death without a will, you leave assets worth €500,000 and have two children. Each of them would therefore be entitled to €250,000. However, the person to whom you are currently married under a community property regime, and who is not their biological parent, would be entitled to the usufruct over one third of that amount, approximately €166,000. In this case, your children would have to wait until that person dies before gaining access to that usufruct, unless they reach a compensatory agreement beforehand.

A different issue arises if you both purchased the property jointly or later took out a mortgage together and paid it jointly. In that case, since your partner would own a percentage of the property, they would be in a more secure position. Even so, the remainder of the property would still belong to the legal heirs.

And what about stepchildren?

When we refer to stepchildren, we mean the biological children of the person with whom someone chooses to live, but who are not biologically their own. In that case, unless they have been legally adopted, they are not entitled to receive any part of the inheritance if there is no properly drafted will. As mentioned earlier, they could, however, benefit from the improvement third.

Inheritance with children from different marriages

At this point, we believe the situation and the reasons why, if you have children with different mothers or fathers — whether you were married or not — you should always make a will have become clear. Get in touch with us and let our specialist inheritance lawyers advise you on drafting it in accordance with the law, ensuring everything is properly arranged for the future.