My first cousin has passed away and I have minor children. Do they inherit from him? Must I carry out the procedure for the renunciation of inheritance?
The answer is negative.
The children of the deceased’s first cousins do NOT inherit.
In intestate succession, where there are no heirs of the first or second class or such heirs have lapsed, the relatives of the decedent listed in the third class are called to the inheritance.
Thus, in the third class, the (potential) intestate heirs, apart from the spouse or registered partner, are:
a) The grandfathers and grandmothers of the decedent (from both the paternal and maternal line), being related to the decedent in the second degree in the direct line;
b) the children of the decedent’s grandfathers and grandmothers, namely his uncles and aunts, being related to the decedent in the third degree in the collateral line;
c) the grandchildren of the decedent’s grandfathers and grandmothers, namely his first cousins, being related to the decedent in the fourth degree in the collateral line.
It follows therefore that the children of the decedent’s first cousins (great-grandchildren of his grandfather), being related to the decedent in the fifth degree in the collateral line, are not heirs of his estate. As a result, if no grandfathers or grandmothers of the decedent are alive or all of them have lapsed, together with all their children (uncles and aunts of the decedent) and all their grandchildren (first cousins of the decedent), the relatives of the fourth class are called to the inheritance, namely the great-grandfathers and great-grandmothers of the decedent.
In other words, here the descendants of each head of stock (each grandfather or grandmother) do not inherit without limit, as occurs in the first class of succession, but only that person’s children and the children of his or her children.
- See also article Certificate of Inheritance
- See also article Renunciation of Inheritance by a Minor
- See also article Challenging a Will
- See also article Death of a Bank Depositor
- See also article Forced Heirship
- See also article Classes of Intestate Succession
- See also article Kinship
- See also article Power of Attorney from Abroad
FREQUENTLY ASKED QUESTIONS ON RENUNCIATION OF INHERITANCE FROM A DISTANT RELATIVE
1. My first cousin has died. Do my children inherit?
No. The children of the deceased’s first cousins are not included among the intestate heirs. Their relationship to the deceased is in the fifth degree of the collateral line, while the law limits the third class of succession to the grandchildren of the decedent’s grandparents, namely to the first cousins. Beyond that degree there is no call to the inheritance. Therefore, if the decedent is your first cousin, you may inherit, but your minor children do not acquire any independent capacity as heirs in relation to him.
2. So I do not need to file a renunciation for my children?
As a rule, no, since your children are not even called to the inheritance of your first cousin. Renunciation is made only when a person has actually been called as an heir; otherwise it is unnecessary and has no legal object. Your own position is a different matter: if you, as the deceased’s first cousin, do inherit and wish to renounce due to debts, your renunciation may shift the inheritance to other relatives, but not to your children. It is advisable to have an individualised review of the family tree carried out by a lawyer.
3. Who inherits in the third class of intestate succession?
The third class is called, where there are no heirs of the first or second class or such heirs have lapsed, and comprises the decedent’s grandfathers and grandmothers from both the paternal and maternal line, their children (the deceased’s uncles and aunts) and their grandchildren (the deceased’s first cousins). The descendants of each line do not inherit without limit, in contrast to the first class. If none of the above exists, the inheritance passes to the fourth class, namely the great-grandfathers and great-grandmothers of the deceased.
4. What deadline applies if I am ultimately called as an heir?
The renunciation period is four months from the moment the heir becomes aware of the devolution and its grounds. If the deceased had his last domicile abroad or the heir lives abroad, the period is extended to one year. If it expires without action, the inheritance is deemed accepted with all its assets and liabilities, including debts. In the case of minors, the period begins on attaining majority or from the time the parent obtained authorisation from the court, in line with case-law.
5. What documents do I need in order to determine whether I am an heir?
You will need a death certificate, a certificate of next of kin, a certificate of non-publication of a will, a certificate of non-renunciation, as well as family status certificates establishing the chain of kinship. In complex third-class cases, a genealogical chart is required showing whether grandparents, uncles and aunts, or first cousins are still alive. In addition, documents concerning the decedent’s assets are useful, in order to assess whether acceptance or renunciation is preferable, together with confirmations of any debts owed to the tax office and to banks.
6. What role does the lawyer play in such a matter?
Our firm reviews the family tree, identifies the class to which the client and his or her children belong, and ascertains whether there is any obligation to renounce. We draft the renunciation declaration before the competent Court of First Instance, monitor the deadlines and handle court authorisations for minor children where required. At the same time, we investigate the deceased’s assets and debts so that the client can make an informed decision. Where necessary, we represent the client before courts, the tax office (DOY) and banks for the issuance of a certificate of inheritance or for protection against creditors’ claims.