Married without children? Your will matters too

Updated on 27 September 2026. The Civil Code rules on what the spouse and the parents inherit have not changed in 2025 or 2026. We have clarified what happens without a will and added the case where no ascendants are alive, community property and the current tax position in Madrid.

Many married couples without children believe that, if one of them dies, all of their assets will automatically pass to the surviving spouse.

However, this is not always the case.

Especially when the couple own their home and the deceased's parents are still alive, the outcome can be very different from what you might imagine. We explain the rules of common civil law (Derecho civil común), meaning the general Civil Code rules, which apply to people whose vecindad civil (regional civil-law status) is común, as is the case for most people living in Madrid; the exceptions are explained below.

What happens if a married couple without children do not make a will?

When a person dies without descendants, their parents and other ascendants are forced heirs (herederos forzosos) (art. 807 of the Civil Code, Código Civil). And if there is no will, the law calls them to inherit before the spouse:

• The parents inherit in equal shares. If only one is alive, that parent inherits everything; if neither is alive, the closest ascendants, such as grandparents, inherit (arts. 935 to 938 CC).
• The surviving spouse is not an heir. They are only entitled to their forced share (legítima): the usufruct of half of the estate (art. 837 CC).
• If, at the time of death, you were legally or de facto separated, the surviving spouse does not have these rights (arts. 834 and 945 CC).

The home: community property comes before the inheritance

The fact that a home belongs 50% to each spouse does not mean that, when one of them dies, the other automatically becomes the owner of 100%.

If you signed no marriage contract (capitulaciones) and your marriage is governed by the Civil Code (the usual case if you both had vecindad civil común when you married: arts. 9.2 and 16.3 CC), your matrimonial regime is community property (gananciales) (art. 1316 CC), which ends on death (art. 1392 CC). What counts first is your vecindad civil when you married, not where the wedding took place. If either of you had a regional civil-law status (Catalan or Aragonese, for example) or you are foreign nationals, a different regime may apply, so check this first; for international marriages celebrated since 29 January 2019, it is determined by Regulation (EU) 2016/1103.

Before the estate is divided, the community property must be wound up: half of the community assets belongs to the surviving spouse in their own right, and only the other half forms part of the estate. If you were married under separation of property, each of you keeps the share stated in the title deed. And if the family home was bought before the wedding but the mortgage was paid during the marriage with community funds, part of the home is community property, in proportion to the contributions (arts. 1357 and 1354 CC).

In that winding-up, the surviving spouse can ask for the family home to be allocated preferentially to their share, either outright or through a right of use or habitation, paying the difference in money if its value exceeds what they are entitled to (arts. 1406.4 and 1407 CC). They also receive the household contents without it counting towards their share (art. 1321 CC).

An example. If the community-property home is the only asset and there is no will, the surviving spouse keeps their half, but the other half passes to the parents, and the spouse only has the usufruct of half of it, that is, of a quarter of the house. With a will, the parents would be entitled to a third of the estate, which amounts to one sixth of the value of the home, and the rest could go to the spouse.

This is where many couples are caught out: the surviving spouse may end up sharing the home with their parents-in-law, and will need their agreement to sell or mortgage it.

What rights does the surviving spouse have?

The surviving spouse's forced share is the usufruct of half of the estate where there are ascendants (art. 837 CC) and the usufruct of two thirds where there are neither descendants nor ascendants (art. 838 CC).

But there is a fundamental difference between usufruct and ownership. A usufructuary can use the assets or collect their income for life, but cannot sell them or leave them in their own will. And the heirs can replace the usufruct with a life annuity, the income from certain assets or a cash sum, by mutual agreement or by court order (art. 839 CC).

That is why, for a couple who have built up their assets together, relying solely on what the law grants the surviving spouse is often not enough.

What a will can achieve

Ascendants are entitled to their forced share, but not to the whole estate. Where they share the estate with a surviving spouse, their forced share is one third; with no spouse, it is half (art. 809 CC). So you can leave your spouse up to two thirds of the estate outright, which more than covers their forced share in usufruct.

A well-drafted will can go further:

• Choose which assets pay your parents' forced share, for example savings, so that the home goes entirely to your spouse, provided what they receive covers their third (art. 1056 CC).
• Name substitute heirs. If it cannot be proved who died first, for example in the same accident, the law presumes you died at the same time and nothing passes between you (art. 33 CC). Substitutes stop the estate ending up where you did not intend (art. 774 CC).
• Decide where the assets finally go. If you want whatever remains to return to your own family when your spouse dies, there are mechanisms such as the residuary fideicommissary substitution (sustitución fideicomisaria de residuo) (arts. 781 et seq. CC).

Four practical warnings:

• Each spouse makes their own will. The Civil Code prohibits two people from making a will in the same document (art. 669 CC); the usual approach is two reciprocal wills.
• If you leave your spouse the universal usufruct, your parents can choose between respecting it or giving them the freely disposable part instead (art. 820.3 CC).
• You can change your will whenever you like: a later will revokes the earlier one (art. 739 CC). The Civil Code does not provide that separation or divorce, by themselves, cancel what you left your spouse, so if your circumstances change, make a new one.
• What your parents gave you may go back to them. If you die without descendants, your ascendants take, to the exclusion of anyone else, the assets they gave you that are still in your estate, or whatever replaced them if you sold or exchanged them (art. 812 CC). How far this applies when there is a will, or when the gift was money, is debated, so review it if they helped you buy the home.

And if no ascendants are alive?

If there is no will and there are no descendants or ascendants, the spouse inherits all the assets ahead of siblings, nephews and nieces (art. 944 CC), unless they were legally or de facto separated (art. 945 CC). Your siblings are not forced heirs, so in your will you can leave everything to your spouse.

What few couples foresee is the next step: when the surviving spouse dies, their assets, including what they inherited from you, will go to their heirs and not to your family. If that matters to you, your will is the place to deal with it.

And what about the mortgage?

A distinction must be drawn between ownership of the home and the debt owed to the bank, which does not disappear on death:

• Debts form part of the estate, and the forced share is calculated on the net value, after deducting debts and charges (art. 818 CC).
• Anyone who accepts unconditionally is also liable with their own assets (art. 1003 CC); accepting with the benefit of inventory (a beneficio de inventario) limits liability to what is inherited (arts. 1010 and 1023 CC).
• Benefit of inventory has formal requirements and deadlines: it is declared before a notary (art. 1011 CC) and, if you already hold estate assets (which may be your case if you still live in the home), you must request the notarial inventory within 30 days of knowing you are an heir (art. 1014 CC). Meanwhile, avoid acts that imply acceptance (art. 999 CC). Also, any interested party can ask a notary to give you 30 calendar days to decide, and if you do not reply you are deemed to have accepted unconditionally (art. 1005 CC).
• If you both signed the loan, the surviving spouse remains bound under the terms of the contract, however the estate is divided.
• Check whether there is linked life insurance and who the beneficiary is: the insurer pays the beneficiary even if the heirs object, and the beneficiary can also be designated in a will (arts. 84 and 88 of the Insurance Contract Act, Ley de Contrato de Seguro).

Succession planning should take into account both the assets and the financial obligations associated with them.

Taxes: what the spouse and the parents pay in Madrid

If the deceased's habitual residence was in the Community of Madrid for most of the five years before death (art. 28.1.1.º.b of Law 22/2009 on regional financing), Inheritance Tax (Impuesto sobre Sucesiones) is now very low for the spouse and the parents (group II):

• A €16,000 reduction for kinship (art. 21.Uno.1 of the consolidated text on taxes ceded to Madrid).
• A 95% reduction on the value of the deceased's main home, capped at €123,000 per heir, if it is kept for five years (art. 21.Uno.4).
• A 99% relief on the tax due, which also covers life insurance added to the inheritance (art. 25.1).
• A six-month deadline from the date of death, extendable by another six months if requested within the first five months, with late-payment interest (arts. 67 and 68 of the Inheritance and Gift Tax Regulations). Self-assessment (form 650) is mandatory.

The municipal capital gains tax (plusvalía municipal) must also be declared within six months, extendable to one year (art. 110.2.b of the Local Finance Act, Ley Reguladora de las Haciendas Locales), and Madrid City Council gives relief of between 40% and 95%, depending on the cadastral value of the land, when the spouse or ascendants inherit the deceased's main home; the relief is claimed in the self-assessment itself, on time. In other autonomous communities, the reductions and reliefs are different.

Not all inheritances in Spain are governed by the same rules

The above is common civil law. The applicable law depends on the deceased's regional civil-law status (vecindad civil) (arts. 14 and 16 CC), and on this subject the differences are large:

• In Catalonia, with no will and no descendants, the spouse or stable partner inherits ahead of the parents, who keep a forced share of one quarter (arts. 442-3, 451-4 and 451-5 of the Civil Code of Catalonia).
• In Galicia, the Basque Country and Aragon, parents are not forced heirs (art. 238 of Galician Law 2/2006, art. 47 of Basque Law 5/2015 and art. 486 of the Aragonese Foral Law Code).

If either of you is a foreign national or you own assets abroad, Regulation (EU) 650/2012 comes into play: in general the law of the last habitual residence applies, although you can choose the law of your nationality in your will. That is why, before knowing who inherits, you need to establish which law applies.

If your spouse has already died: first steps

1. Request the certificate of last wills (certificado de últimas voluntades) and the certificate of life insurance policies, available once 15 working days have passed since the death.
2. If there is no will, apply for a declaration of heirs before a notary (declaración de herederos) (art. 55 of the Notaries Act, Ley del Notariado).
3. Wind up the community property, draw up an inventory of assets and debts and, if you are an heir, decide promptly how to accept: 30-day deadlines apply to the benefit of inventory (arts. 1014 and 1015 CC).
4. File Inheritance Tax and the municipal capital gains tax on time.
5. If there is no agreement and a court division is needed, since 3 April 2025 you must first try negotiation, mediation or another appropriate dispute resolution method (MASC) (art. 5 of Organic Law 1/2025).

You may find our Inheritance: first steps tool and our article on what to do when an heir blocks an inheritance useful.

Why is it advisable to make a will if you do not have children?

Because marriage, on its own, does not guarantee that the surviving spouse will receive the estate outright. Making a will allows you to:

• Protect the surviving spouse as fully as possible.
• Respect the rights of the forced heirs.
• Avoid, as far as possible, unwanted co-ownership of the home.
• Decide what will happen to your assets when you are both gone.
• Spare your family the declaration of heirs and reduce the risk of disputes.

And it is a simple formality: the notarial fee scale sets a fee of €30.05 per testator for a will, plus copies and VAT (Royal Decree 1426/1989, Annex I, number 1). If you are not married, the position is very different; we explain it in Does an unmarried partner have inheritance rights?.

If you would like to review your case (matrimonial regime, home, mortgage, regional civil-law status) before going to the notary, you can book a consultation or write to us via our contact page.

Not having children does not mean there is no need to make a will. In childless marriages in particular, good planning helps spare the surviving spouse from having to sort out legal problems at one of the most difficult moments of their life.

The best inheritance can also be having left everything well organised.

Legislation and sources

• Civil Code (consolidated text, BOE)
• Legislative Decree 1/2010, consolidated text on taxes ceded to the Community of Madrid (BOE)
• Inheritance and Gift Tax Regulations, Royal Decree 1629/1991 (BOE)
• Law 22/2009 on regional financing, art. 28 (BOE)
• Community of Madrid: Inheritance Tax
• Consolidated Local Finance Act, art. 110 (BOE)
• Madrid City Council: plusvalía relief on death (in Spanish)
• Insurance Contract Act, Law 50/1980 (BOE)
• Notaries Act (BOE)
• Organic Law 1/2025 on the efficiency of the Public Justice Service (BOE)
• Ministry of Justice: certificate of last wills
• Ministry of Justice: certificate of life insurance policies
• Ministry of Justice: service charter of the Notarial and Registries Directorate, with the 15-working-day wait (PDF, in Spanish)
• Royal Decree 1426/1989, notarial fee scale (BOE)
• Law 10/2008, Book Four of the Civil Code of Catalonia, succession (BOE)
• Galician Civil Law Act, Law 2/2006 (BOE)
• Basque Civil Law Act, Law 5/2015 (BOE)
• Aragonese Foral Law Code, Legislative Decree 1/2011 (BOE)
• Regulation (EU) 650/2012 on succession (EUR-Lex)
• Regulation (EU) 2016/1103 on matrimonial property regimes (EUR-Lex)