Short answer. It goes back into the estate. Article 956 merges a legacy or devise that is refused, or that becomes ineffective for any reason, into the mass of the estate — with two exceptions, where the testator named a substitute and where the right of accretion applies among heirs called together.
What the law says
If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion.
Civil Code, Article 956 — If the Legatee Cannot or Will Not Accept. Read the full provision →
What the law says
The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.
Civil Code, Article 859 — Simple Substitution. Read the full provision →
What the law says
That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it.
Civil Code, Article 1016 — Requisites in Testamentary Succession. Read the full provision →
The default is that it falls back into the estate
If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. The article covers refusal and incapacity in the same breath as any other failure — the thing was destroyed, the clause was void, the person named died first. Whatever the reason, the property does not become ownerless and it does not go to whoever happens to hold it. It rejoins the estate and is distributed with everything else.
The first exception: the testator named a substitute
Article 857 defines substitution as the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted, and Article 859 spells out when: The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. The same article adds that a simple substitution, without stating which cases it refers to, comprises all three unless the testator provided otherwise. So a clause naming a fallback beneficiary is read generously rather than narrowly.
The second: accretion among heirs called together
Accretion moves the vacant portion sideways rather than back. Article 1016 requires That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. The first requirement does the work: the beneficiaries must have been called jointly to an undivided thing. Article 1017 adds that phrases such as 'in equal shares' do not defeat accretion, because they designate a fraction without making anyone the exclusive owner of determinate property.
Why it matters where the item lands
The three outcomes reach different people. A substitute takes personally; accretion enlarges the shares of the co-legatees; merger into the mass sends the item to whoever takes the residue, and where the will disposed of nothing further that is the legal heirs under Article 960. Note also that a refusal must be a real one — Article 1041 makes acceptance and repudiation purely voluntary, Article 1051 prescribes the form for repudiating, and Article 1056 makes either irrevocable once made. An heir who is minded to refuse should take advice before doing it, not after.
Related provisions
- Civil Code, Article 956 — If the Legatee Cannot or Will Not Accept
- Civil Code, Article 857 — Substitution Defined
- Civil Code, Article 859 — Simple Substitution
- Civil Code, Article 1016 — Requisites in Testamentary Succession
- Civil Code, Article 1017 — 'In Equal Shares' Still Allows Accretion
- Civil Code, Article 1051 — How to Repudiate
- Civil Code, Article 1056 — Acceptance Is Irrevocable