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Inheritance or Succession Law, what does it consist of?
We are accustomed to using terms such as "heir", "will" or even "executor". These are legal concepts defined by the law of succession and which we all understand to a greater or lesser extent, as they affect a person's family sphere. But what is inheritance law?
Inheritance law is a part of private law that defines how and to whom a person's rights, obligations and assets are passed on when he or she dies. This is known as succession mortis causa or "by cause of death" and the rules are responsible for defining the distribution of these assets and rights, the form that wills should take, what to do in the absence of such a document or the reasons why potential heirs cannot succeed a person.
Keys to inheritance law
Succession, according to the definition given by civil law experts, is the "substitution of a person in the set of transferable legal relations that corresponded, at the time of his death, to another person, or in specific assets and rights left by the deceased". The inheritance left by a person at death therefore involves all those rights and obligations that are not extinguished by death. In other words, it is universal because it includes both the assets and liabilities of the deceased, but leaves out those very personal rights, such as the right to life, health, freedom or honour, among others. The death of a person is the event that activates the succession process, but the law allows, in some cases, the transmission of rights "inter vivos", that is to say, receiving goods or rights from a person while he or she is still alive.
A simple example to describe inheritance is the case of a married couple with one child. Let us assume that this married couple owns a house and a second house in another city, both members of the couple own both properties. In the event of the death of one of them, inheritance rights to half of both properties will arise. The Civil Code or the applicable provincial laws are responsible for determining how the distribution of these properties is carried out and for assessing whether the will, if it exists, is valid to create this right of the heirs.
But the reality is not always so simple, which is why inheritance law is responsible for establishing a series of rules and situations in the spirit of facilitating the transfer of the deceased's rights and assets.
Scope of application of the law of succession
In Spain, the Civil Code is responsible for defining the general legislative framework of inheritance law. Common law establishes from the rights, assets and obligations that comprise an inheritance - the valid forms that a will can have, the way to challenge it in case it does not comply with the legal characteristics and contains defects - to what happens when a person dies and has not left this document or the will is declared null and void or ineffective.
It also establishes the figure of the heir, his or her capacity to inherit and the limits or incapacity to inherit of a person, among others, due to what are called "causes of unworthiness", which are those that cause criminal convictions for crimes committed against the person from whom an asset or right is inherited.
The Civil Code also provides for the validity of figures such as:
- Executor: a person appointed to ensure that the will of the deceased in respect of his or her estate is carried out.
- Trustee commissioner: persons to whom a testator delegates powers to designate a universal heir, to dispose of legacies or to set up a protected estate for persons with disabilities, for example. These figures can be performed by a private individual or a legal person, provided that their capacity is validly established before the death of the deceased.
Regulations of the autonomous communities
The rules contained in the Civil Code, known as common law, are valid at national level. However, most of the Autonomous Communities have already regulated specific aspects of inheritance law, especially in reference to its fiscal effects, so that the specific law will prevail and, in general, the place of habitual residence of the deceased will have to be taken into account to determine the rule applicable to the succession.
This prevalence of the foral law over the common law will be key, for example, when it comes to recognising a document other than a will as a form of voluntary succession. Some foral laws provide that, in addition to a will, a person may establish who his or her successors will be through pacts, joint wills or testamentary memorials. Another difference in the special laws is the distribution of the inheritance: while Common Law establishes the rule of thirds and the testator only has one third of his estate freely to bequeath to whomever he wishes, some regions establish that there is no obligation to bequeath to any relative (known as the legítima, the portion of the assets that corresponds to the direct relatives according to the Civil Code) and the entire estate can be freely disposed of.