Short answer. A substitute heir is a back-up heir named in a will to take the place of an instituted heir if that heir cannot or will not inherit. Under Article 859, a simple substitution kicks in when the first-named heir dies before the testator, refuses the inheritance, or is incapacitated to accept it.
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
A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.
Civil Code, Article 859 — Simple Substitution. Read the full provision →
A substitute heir is a designated back-up
Article 859 is about a safeguard a person can build into a will. It provides that 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 person who makes the will — the testator — first institutes an heir, that is, names who is to inherit. Fearing that this heir might not end up taking the inheritance, the testator can name a substitute to step in instead. This is called simple, or common, substitution: a second choice who inherits only if the first choice, for one of the stated reasons, does not.
When the substitute actually inherits
The substitute does not inherit alongside the instituted heir; he inherits only if the first heir falls away for one of three reasons the article lists. The first is predecease — the instituted heir should die before the testator, so there is no one to receive the gift. The second is refusal — the heir should not wish to accept, that is, repudiates the inheritance. The third is incapacity — the heir should be incapacitated to accept, for example because the law disqualifies him from inheriting from this testator. In any of these situations, the share that would have gone to the instituted heir passes instead to the substitute the testator named.
A simple substitution covers all three by default
A testator does not have to spell out each triggering situation. The article provides that A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. So if a will simply names a substitute without saying when the substitution applies, the law reads it as covering all three cases — predecease, refusal and incapacity. The testator remains free to narrow this: he may provide, for instance, that the substitute inherits only if the first heir dies before him, and not in the other cases. Absent such a limitation, the default is the broadest coverage.
The limits of substitution
Substitution is a creature of a will, so it operates only where there is a valid will making the designation; it does not apply to an intestate succession, where the law itself decides who inherits. It also cannot be used to defeat the legitime — the portion the law reserves for compulsory heirs such as children and a spouse — because those heirs are entitled to their shares by law and cannot simply be substituted out of them. And simple substitution is different from other, more complex forms the Code allows, which carry their own rules. Because wills and substitutions must meet strict formal and substantive requirements to be valid, drafting or relying on one is best done with counsel.