Inheritance without a will in Spain in 2026: who inherits, declaration of heirs, cost and deadlines

Dying without a will is more common than it seems, and it does not mean the inheritance is lost or goes to the State. When there is no will, the Código Civil (Spanish Civil Code) decides who inherits, in what order and in what share. This is called intestate succession, or abintestato in Spanish, words that simply mean “without a will”.

Before anything can be divided, it must first be officially recorded who those heirs are. Since 2015 a notary does this with the declaration of heirs deed (acta de declaración de herederos). In this guide we explain the legal order, what the surviving spouse receives, how the procedure works, which papers are requested and how much an inheritance handled in the Comunidad de Madrid (Madrid region), where the general Civil Code applies, costs and how long it takes in 2026.

When the inheritance is divided according to the law

Under article 912 of the Civil Code, the law divides the estate when there is no will or it is void; when the will does not cover all the assets (only for those left out); and when the named heir dies first, renounces or cannot inherit and there is no substitute.

Who inherits: the order in the Civil Code

The general rule is simple: the closest relative excludes the more distant one, and those in the same degree inherit in equal shares (arts. 921 and 922). From there, the order is as follows:

1. Children and descendants. Children inherit in equal shares, regardless of age, sex or parentage. If a child died earlier, their own children take their place and share what would have been theirs; this is known as the right of representation (arts. 930 to 934).
2. Parents and ascendants. If there are no descendants, the parents inherit in equal shares, or the surviving parent takes everything. If neither is alive, the closest ascendants inherit, usually the grandparents, with half going to the father's side and half to the mother's (arts. 935 to 942).
3. Surviving spouse. With no descendants or ascendants, the spouse inherits everything, ahead of siblings, unless legally or de facto separated (arts. 944 and 945).
4. Siblings and nephews and nieces. Next come siblings and the children of siblings who have died. Full siblings receive twice as much as half-siblings (arts. 946 to 951).
5. Other relatives up to the fourth degree. For example, uncles, aunts and first cousins, always giving preference to the closest degree (arts. 954 and 955).
6. The State. If no relative with a right remains, the State inherits, allocating two thirds of what it receives to social purposes and always accepting with benefit of inventory, that is, without being liable for debts beyond the assets (arts. 956 and 957).

Source: arts. 834, 837 and 912 to 958 of the Civil Code (CEF Civil-Mercantil). A spouse who is legally or de facto separated does not inherit.

The surviving spouse: what they are really entitled to

This is the most common question and it is worth making clear: if there are children, the widow or widower does not inherit the flat in full ownership. They receive a usufruct, that is, the right to use the assets or collect their income for life without owning them, over the third of the inheritance known as the mejora (art. 834). If they inherit alongside the deceased's parents, the usufruct covers half (art. 837). Only when there are no descendants or ascendants do they inherit everything in full ownership.

Also, inheritance should not be confused with community property (gananciales, the default marital property regime in much of Spain). If the couple were married under community property, the marital partnership must be wound up before the inheritance is divided: the surviving spouse is entitled to half of the joint assets because they are theirs, not by inheritance, and only the other half, together with the deceased's separate property, is shared among the heirs. That is why the inheritance deed usually begins with the winding-up of the community property, in which the spouse must take part.

The heirs and the surviving spouse can agree to exchange that usufruct for a life annuity, the income from certain assets or a sum of money (art. 839). This is common when the flat is to be sold, because a buyer wants full ownership and, to give it, everyone has to sign: whoever holds the usufruct and whoever holds the ownership.

What about unmarried partners?

In the Comunidad de Madrid the general Civil Code applies, and it does not include unmarried partners (pareja de hecho) in the order of inheritance without a will. Even if the partnership is registered, without a will the partner does not inherit by law, as a notary pointed out in comments to El Español on 1 October 2026. Other regions with their own civil law, such as Catalonia or the Basque Country, do recognise inheritance rights for them.

For tax purposes, however, Madrid treats partners registered under its law on unmarried couples the same as spouses, and they can apply the 99% relief if they inherit under a will (Cuatrecasas, 2022). Conclusion: if you live together without being married, make a will.

The declaration of heirs before a notary

Since the 2015 Voluntary Jurisdiction Act, notaries can declare any relative an heir: descendants, ascendants, the spouse and also collateral relatives such as siblings, nephews and nieces or cousins. Before that, for collateral relatives you had to go to court with a lawyer and a court representative (procurador), and according to El Derecho those cases took seven months on average.

Anyone who considers themselves an heir or has a legitimate interest can request it. You can choose a notary from among those of the deceased's last address or habitual residence, the place where most of their assets were, the place of death if it was in Spain, or a district bordering any of these; if none of these is possible, the notary of the applicant's address will do (art. 55 of the Notaries Act).

How the procedure works, step by step

1. Gather the death certificate, the certificate of last wills and the documents that prove kinship.
2. Sign the request at the notary's office: the applicant identifies the possible heirs, explains their kinship and states the deceased's last address.
3. At least two witnesses who know the family appear and declare that the deceased left no will and that those people are the only heirs. They can be relatives, as long as they have no direct interest in the inheritance.
4. The notary carries out whatever checks they consider necessary. If an interested party cannot be located, the notary publishes a notice in the BOE (Official State Gazette) and on the town hall notice boards, and a one-month period opens for anyone to object.
5. Once at least 20 working days have passed since the request, or since the end of the month of notices, the notary closes the deed and declares who the heirs are and what rights each one has.

With the deed, the heirs can sign the deed of acceptance and division, file the taxes and register the assets. Going with a lawyer is not compulsory, although it is advisable if there is a dispute or there are debts.

When do you need to go to court?

In an inheritance without a will under the general Civil Code, the declaration of heirs is no longer made by a judge: it is the notary's responsibility and, when there are no relatives with a right, the Administration's. If the notary concludes that no one is entitled to inherit, they send the deed to the Delegación de Economía y Hacienda (the State's regional finance office) so that the State can be declared heir (art. 56 of the Notaries Act).

The court comes in when there is a dispute or when the law requires judicial oversight:

• If someone considers themselves harmed by the declaration, or could not prove their right before the notary, they can bring a declaratory action in court. If it is shown to the notary that a claim on the same matter has already been filed, the deed is put on hold.
• If the heirs cannot agree on the division, any of them can ask for the inheritance to be divided by the court.
• If parents want to renounce an inheritance on behalf of a minor child, they need court authorisation (art. 166 of the Civil Code).

Documents you will be asked for

• Full death certificate (certificado literal de defunción).
• Certificate of last wills, proving there is no will.
• The deceased's DNI (Spanish ID card) or, if it is not available, a certificate of registration on the municipal register (certificado de empadronamiento).
• Family book (libro de familia) or marriage and birth certificates proving kinship; if a child has died, their death certificate as well.
• ID of the person requesting the deed and of the two witnesses.
• If the inheritance comes to you because other heirs renounced it, the deeds of renunciation.

The list matches the one published by the Consejo General del Notariado (General Council of Notaries) and Life5, although the notary may ask for other evidence depending on the case.

How much it costs and how long it takes

Sources: art. 56 of the Notaries Act, Mapfre (2023), Life5 (July 2024) and Comunidad de Madrid e-office (October 2026). Notary costs depend on the number of heirs and the steps that need to be taken.

As a rough guide, between gathering the certificates and having the deed signed, one to three months usually pass if the family can be located and is in agreement. You do not need to wait for it to start gathering the paperwork on the assets, and it is wise to keep an eye on the six-month Inheritance Tax deadline: if everything is going to be delayed, request the extension before the end of the fifth month.

Taxes: they do not change because there is no will

Having no will does not make the taxes more expensive. In Madrid, children, spouses and parents apply the 99% Inheritance Tax relief, and siblings and nephews and nieces the 50% relief since July 2025 if they file on time. Each heir files their own self-assessment, including the surviving spouse for their usufruct, and the plusvalía municipal (municipal capital gains tax) is paid. We explain it with figures in “How much does it cost to inherit a property in Madrid in 2026? Notary, Land Registry, taxes and lawyer”.

Common mistakes

• Assuming the widow or widower inherits everything when there are children.
• Forgetting to wind up the community property before dividing the inheritance.
• Letting the first five months go by without requesting the Inheritance Tax extension.
• Choosing witnesses with a direct interest in the inheritance.
• Thinking that in Madrid an unmarried partner inherits without a will.
• Dividing things up verbally without signing the deed: the flat will stay in the deceased's name and no one will be able to sell it.

How we do it at Llavely

At Llavely we work with lawyers specialising in property sales and inheritance, with more than 35 years of experience. If your relative did not leave a will, with the “Full inheritance + sale” service our lawyers handle the whole inheritance: the declaration of heirs (or the will, if one turns up), the acceptance and division before a notary, Inheritance Tax, the plusvalía and registration at the Land Registry. Before starting we give you a fixed quote for that part, separate from the sale: just ask us for it.

Once the home is in your names, we sell it with “Llavely Sale”: 2.5% + VAT of the sale price, payable only if it sells and on the day of signing at the notary. Everything included and done by Llavely: valuation, photos, video, floor plan and virtual tour, screened and verified buyers (we speak to each one before showing the home and check their ID), viewings, which we carry out ourselves, offers and the arras (deposit contract), coordination with the notary, our lawyers from start to finish, who go with you in person to the notary, and a private seller portal to follow the sale.

This article is for information only: each specific case should be reviewed with a professional.

Frequently asked questions

Sources

1. Código Civil (Civil Code), arts. 912 to 929: intestate succession (CEF Civil-Mercantil)
2. Código Civil (Civil Code), arts. 930 to 958 bis: the order of succession (CEF Civil-Mercantil)
3. Código Civil (Civil Code), arts. 744 to 911: forced shares and rights of the surviving spouse (CEF Civil-Mercantil)
4. Article 56 of the Ley del Notariado (Notaries Act): declaration of heirs without a will (Iberley)
5. Ley del Notariado (Notaries Act), section on the declaration of heirs without a will, art. 55 (Papelea)
6. What is a declaration of heirs deed when there is no will? (Consejo General del Notariado, General Council of Notaries)
7. The Voluntary Jurisdiction Act speeds up inheritance procedures when there is no will (El Derecho, 21 July 2016)
8. Declaration of heirs without a will after the Voluntary Jurisdiction Act (Notarios y Registradores, July 2015)
9. Marta Peña, notary: in Spain, if you have no children, your spouse does not inherit automatically (El Español, 1 October 2026)
10. Applying tax benefits to unmarried couples (Cuatrecasas, March 2022)
11. Winding up community property before the division of the estate (Notarios y Registradores, February 2016)
12. Declaration of heirs: what it is and how to do it (Life5, July 2024)
13. What the certificate of last wills is (Mapfre, updated October 2023)
14. Renouncing an inheritance when minors are involved (Notarios y Registradores, January 2016)
15. Extension of deadlines for filing Inheritance Tax (Comunidad de Madrid e-office, updated 8 October 2026)