Short answer. Under Civil Code Article 383, the present spouse is the court's preferred choice as representative for an absent spouse, provided the parties are not legally separated. If there is no spouse, or the spouse is a minor, the court may appoint any competent person.
What the law says
In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court.
Civil Code, Article 383 — Spouse Preferred as Representative. Read the full provision →
The present spouse as first preference
Article 383 reflects a straightforward logic: the person most directly affected by a spouse's disappearance — and most likely to act in the absentee's interest — is the other spouse. The law therefore gives the spouse present a preferential position when the court appoints a representative to manage the absentee's affairs. This preference is not absolute, but it is the starting point. Absent a disqualifying circumstance, the court is expected to appoint the surviving spouse first.
Legal separation removes the preference
Article 383 includes one clear condition: the preference applies when there is no legal separation. A couple who has obtained a legal decree of separation — not just a physical separation or informal arrangement — is no longer in the same legal position as a normal married couple. Once legal separation is in place, the present spouse loses the preferential status for appointment as representative. The court still has authority to appoint someone, but the spouse does not automatically move to the head of the line.
When the spouse is absent or a minor
Two additional situations take the spouse out of the picture entirely. First, if the absentee had no spouse — never married, widowed, or otherwise — there is simply no one in the spousal category to prefer. Second, if the present spouse is a minor, they are themselves legally incapable of acting as a representative. In either case, Article 383 gives the court flexibility: any competent person may be appointed. The court exercises discretion to identify someone capable and appropriate — which in practice often means a close relative or trusted adult — without being constrained to a fixed second choice.
What the representative is appointed to do
The representative appointed under this scheme manages the absentee's affairs during the period of recognised absence. This includes administering property, receiving income, paying obligations, and taking any steps needed to preserve the absentee's estate while the outcome of the absence remains unknown. The representative acts on behalf of the absentee — they are not acquiring ownership of anything, and they remain accountable for how they handle the absentee's assets. The scope of authority is defined by the terms of the court's appointment and by the Civil Code's provisions on absence.