In the absence of a will, the inheritance is distributed by operation of law, which means that the property goes first to the deceased’s immediate family members and, in their absence, to more distant relatives. How exactly is the inheritance distributed by operation of law? Find out in this article.
How you inherit depends on the so-called succession title. This is the legal basis on which the right to inherit arises and determines who can become an heir and how the property will be distributed. The succession title is therefore the legal framework that governs the relationship between the testator (deceased) and his or her heirs.
There are three main succession titles:
The different titles of inheritance may be combined. For example, part of the estate may be inherited under a succession agreement, while the rest passes to the heirs at law. Thus, an heir may inherit under several succession titles at the same time.
You can find out more about all types of inheritance titles and their differences in our article.
The intestate succession is therefore the weakest succession title and applies if the testator left neither a will nor a succession contract. In such a case, the distribution of the estate is determined by the law, which determines how and in what order the heirs are called to inherit. The succession by operation of law is therefore based on the relationship of kinship between the testator and the heirs or, alternatively, on the existence of other legal relationships such as marriage.
A succession by intestate succession may also serve as a supplement to an inheritance under a succession contract or a will if the entire estate is not covered. In this case, the law fills the gap and ensures that the deceased’s estate is fully distributed among his or her entitled heirs.
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The law defines a total of six inheritance classes, which determine the order of persons entitled to inherit. These classes are set out in a hierarchical manner, with persons in the preceding group having priority over persons in the following group. Thus, if there are eligible heirs in one group, heirs from lower groups are not called. The heir classes are as follows:
In the 1st class of heirs, the testator (the person who died) is succeeded by his/her children and spouse, each of whom receives an equal share. If any of the children are not entitled to inherit (for example, they died before the testator), their share of the inheritance goes to their own children. This rule also applies to subsequent generations if the original child of the testator had descendants who would inherit from him.
Example: in the case of an inheritance from a husband with two children and a wife, the way it works is that his estate is divided into three equal parts, because the two children and the wife inherit. The wife gets one third of the estate and each of the children also gets one third of the estate. If one of the children died earlier but left descendants of his own, then his third is divided equally among his children.
In the 2nd class of heirs, the deceased’s spouse, the deceased’s parents, and persons who lived in the same household with the deceased for at least one year before the deceased’s death and either cared for the household or were dependent on the deceased for maintenance, inherit from the deceased (if he left no descendants).
All heirs in this class have an equal share, but the rule is that the spouse is entitled to at least half of the estate. This means that if there are multiple heirs, the spouse gets at least half, while the others share the rest.
Example: the testator dies and leaves no children. He has a wife, both parents, and a niece who has lived in the same household with him for the last year and cared for the household. The testator’s estate is then divided among all four heirs entitled to receive it: the wife, the mother, the father, and the niece. The wife receives half of the entire estate and the remaining half is divided equally between the mother, father and niece. Each of the other three heirs therefore receives one-sixth of the estate because they share the half that remains after deducting the wife’s claim.
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In the 3rd class of heirs, the deceased’s siblings and persons who lived in the same household with the deceased for at least one year before his/her death and cared for or were dependent on the deceased for support in the deceased’s household (if he/she left no spouse or parents) inherit from the deceased. The heirs in this class share the inheritance equally. If a sibling is no longer alive, his share passes to his own children.
Example: the testator dies leaving no wife or parents. He has two siblings (a brother and a sister) and a friend who lived in the same household with him for the last year before his death, where he shared in the running of the household. The entire estate is to be divided among these three heirs: the brother, the sister and the friend. The brother and sister shall each receive one third of the estate and the friend of the deceased, as a person living in the same household, shall also receive one third. For example, if the brother died before the testator and left two children, the brother’s share (one third) would be divided between his two children.
In the 4th class of heirs, the testator’s grandparents inherit equally if he left no heirs in the 3rd class (i.e. no siblings or persons living in the same household).
Example: the testator dies leaving no children, spouse, parents or siblings. However, he or she has four grandparents – both maternal grandparents and both paternal grandparents. So the entire estate is divided among all four grandparents and each grandparent gets one quarter of the estate.
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In the 5th class of heirs, the grandparents of the deceased’s parents, i.e. great-grandparents, inherit. The inheritance is divided so that half goes to the paternal great-grandparents and half to the maternal great-grandparents. Each pair of great-grandparents (paternal grandparents and maternal grandparents) share their half equally.
If one of the pair is not alive, his share goes to the other member. If no member of one pair is alive, their share goes to the pair on the same side. If neither is alive, the share goes to the other party, where it is divided in the same way.
Example: the testator dies and has no children, spouse, parents, siblings, no persons living in the same household, or grandparents. However, he or she still has the grandparents of the parents (great-grandparents). Half of the inheritance will therefore go to the paternal great-grandparents and the other half to the maternal great-grandparents.
The paternal grandparents (father’s father and father’s mother) share half of the inheritance equally. Each of them will therefore receive one quarter of the inheritance. If, for example, the paternal grandfather is not alive, his quarter goes to the paternal mother, who inherits half of the paternal inheritance (one quarter of the total inheritance). If the father’s side (both great-grandparents) were not alive, their entire share passes to the paternal great-grandparents on the mother’s side.
The maternal grandparents (mother’s father and mother’s mother) receive the other half of the inheritance. Each great-grandparent on that side receives one quarter of the inheritance. If one of them is not alive, the entire share passes to the other. If the great-grandparents on this side are not alive, the entire share would go to the couple on the father’s side.
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In the 6th heir class, the children of the testator’s siblings (i.e. nieces and nephews) and the children of the testator’s grandparents (i.e. uncles and aunts) inherit. These heirs each receive an equal share. If one of the uncles or aunts is not alive, his share will pass to his children (i.e. the testator’s cousins).
Example: the testator dies and has no children, spouse, parents, siblings, no cohabitants, no grandparents or great-grandparents. However, he has a nephew and niece (children of his siblings’ children), one uncle (his mother’s brother) and an aunt (his father’s sister). The entire estate is therefore divided equally between the nephews, niece, uncle and aunt.
For example, if an uncle (mother’s brother) is dead but has left children of his own, his quarter share would pass to his children (the testator’s cousins). If the uncle left no children, his share would be left to the other heirs in the sixth class.
Disinheritance is a situation where the testator has no heirs, whether by legal succession, a contract of succession or a will, and therefore his estate goes to the State. Thus, disinheritance occurs when there is no person entitled to inherit from the deceased or when all the heirs refuse to inherit.
According to the Civil Code, the State is considered the heir of last resort, which means that if no other heir can be assigned the inheritance, the State becomes the owner of the property. The State may use this property as it sees fit, for example to sell it, use it or transfer it for other purposes.
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The Civil Code lays down the conditions under which anyone may be excluded from the right of succession, regardless of whether he or she is in the first class of succession or is a non-minor heir. The following will be excluded from the right of inheritance:
If someone is disqualified from inheritance, their descendants are still entitled to their share in the legal succession. The exception is when there is a divorce due to domestic violence, in which case the descendants of that spouse have no right of inheritance.
There are three main titles of inheritance – contract of succession, will and intestate succession, with intestate succession being the weakest and only applying when the other titles are absent. Inheritance by operation of law is divided into six classes and each has priority over the next. The first class includes children and spouse, while the other classes gradually expand the circle of heirs to include parents, siblings, grandparents and great-grandparents. If there are no heirs, the property goes to the state.
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