When a person dies without a valid will (or the will does not dispose of all the estate), intestate succession applies, and the law fixes who inherits and in what proportion. Intestate heirs inherit in an order of preference, and the presence of a nearer class generally excludes the more remote. The general order is: legitimate children and descendants; then legitimate parents and ascendants; then illegitimate children; then the surviving spouse; then collateral relatives (brothers, sisters, nephews, and nieces) up to the fifth degree; and finally, in default of all, the State. Several of these, however, concur (inherit together) rather than exclude, particularly the surviving spouse and illegitimate children. Some common combinations illustrate the shares: if the decedent is survived by legitimate children only, they divide the estate equally among themselves; if survived by legitimate children and the surviving spouse, the spouse gets a share equal to that of one legitimate child; if survived by legitimate children and illegitimate children, each illegitimate child gets one-half the share of a legitimate child; if survived by the surviving spouse and legitimate parents, they divide the estate (the spouse and the parents sharing in the proportions the law fixes); if survived by the surviving spouse alone, the spouse takes the whole estate; and if survived by illegitimate children and the spouse, they share in the proportions provided. An important limitation is the iron curtain rule (Article 992), under which an illegitimate child and the legitimate relatives of their parent generally cannot inherit from each other by intestacy. Also, the right of representation allows descendants of a predeceased, incapacitated, or disinherited heir to step into their place in the direct descending line and, within limits, in the collateral line. So intestate succession divides the estate among the heirs in a fixed order and proportion, with the spouse and illegitimate children concurring with the children, subject to rules like the iron curtain and representation.
When No Will Applies
Intestate succession applies when a person dies without a valid will (or it does not dispose of everything). The law fixes who inherits and in what proportion, with a nearer class generally excluding the more remote.
The Order of Heirs
- Legitimate children and descendants;
- then legitimate parents and ascendants;
- illegitimate children and the surviving spouse (who concur);
- then collateral relatives to the 5th degree; and finally the State.
Common Shares
Children only → equal shares. Children + spouse → the spouse gets a share equal to one child. Legitimate + illegitimate children → each illegitimate gets half a legitimate child's share. Spouse alone → the whole estate. The iron curtain rule (Art. 992) bars inheritance between an illegitimate child and the parent's legitimate relatives; representation lets descendants step into a predeceased heir's place.
Practical Takeaways
- Intestacy divides the estate in a fixed order and proportion;
- The spouse generally gets a child's share; illegitimate children get half;
- The iron curtain rule and representation can change who inherits.
Frequently Asked Questions
Who inherits when there is no will? Intestate heirs in an order of preference: legitimate children and descendants, then legitimate parents and ascendants, illegitimate children, the surviving spouse, collateral relatives up to the fifth degree, and finally the State.
How much does the surviving spouse get in intestacy? It depends on who else survives. With legitimate children, the spouse gets a share equal to that of one legitimate child. If the spouse survives alone, the spouse takes the whole estate.
How much does an illegitimate child get? When concurring with legitimate children, each illegitimate child generally gets one-half the share of a legitimate child, subject to the applicable rules.
What is the iron curtain rule? Under Article 992, an illegitimate child and the legitimate relatives of their parent generally cannot inherit from each other by intestate succession, creating a barrier between the illegitimate and legitimate families.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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