The Backup Plan - Collateral relatives in Succession Law

Estate Settlement 4 min read , November 14, 2020

In this article, we will be discussing who collateral relatives are and how they help bring stability to succession cases.

Did you know that the law abhors a vacuum. It goes out of its way to eliminate uncertainties and hypothetical situations by providing "if this... then that" solutions. Why? The end game is to put an end to controversies or doubts.

In inheritance cases, that's why the law created the VIPs of estate law - the compulsory heirs. Without having to think or decide, there is already a special class of people who stand entitled to inherit from a family member in the absence of a will (intestate succession).

However, if there are no compulsory heirs present, what happens then? If there are no children, a surviving spouse or ascendants at the time of death, is the inheritance subjected to a Battle Royale scenario where people are pitted against each other to fight for inheritance assets?

Durante un partido entre el Club de Rugby Málaga y el Económicas Rugby Málaga celebrado en el Bahia’s Park de Marbella.
Photographer: Quino Al | Source: Unsplash

Who are the Collateral Relatives?

To try and prevent an all out free-for-all fight over inheritance, the law created a backup plan if no compulsory heirs are present. Enter the collateral relatives who are mentioned in this article:

Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

Let's break that down for you. Collateral relatives are brothers, sisters, nephews and nieces of the deceased. Collateral relatives only come into the picture if the following situations are present:

  1. There is no will; and
  2. There are no compulsory heirs who stand ready to receive the inheritance, namely descendants, ascendants, illegitimate children or a surviving spouse.

What is their role?

When talking about collateral relatives to clients, I explain that they like vice presidents in an organization. The Vice President's job is to be on standby so that if the President is unable to conduct his responsibilities, then the VP steps in so that the organization continues to operate with no significant delays.

Applied to our situation, the President (or the primary group) enjoys the same treatment as the compulsory heirs while the collateral relatives are like the Vice President who steps in when the first group is absent. They are essentially backups.

As backups, they only come into play when the compulsory heirs are absent.

How does this come into play in real life? If you are a collateral relative, you have no business excluding compulsory heirs. This often appears in cases where the sisters and brothers of the deceased are not in good terms with the surviving spouse and children of the deceased. They claim that since they are the elders, they have a better right to the estate versus the spouse and the children. Wrong. Collateral relatives are backups. They should abide by the priority given by the law.

Two mannequins in the selling window, Kyiv
Photographer: Viktor Talashuk | Source: Unsplash

What rules govern them

Now that you know who the collateral relatives are and why the law included them in the mix, let me give you some rules which apply to their participation in the estate.

First, by themselves, they have no power in this situation. They only become relevant if there is no will distributing the assets (unless they are indicated in the will which we will discuss in a later article) and there are no compulsory heirs present. Again, we have to stick to their purpose which is to serve as backups and lend stability to estate distributions. They should know their place.

Second, these collateral relatives are subject to the Rule of Proximity, which states that closer relatives exclude farther relatives. The closer you are to the deceased, then your right to inherit is stronger. This is reflected in the following Civil Code provision:

Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

This means that if there are brothers and sisters of the deceased alive, they exclude nephews and nieces since the second set is farther from the deceased.

Third and lastly, being backups, they are not entitled to the protection of reserved shares otherwise known as legitimes. They just share in whatever is left for disposition. The law doesn't go out of its way to protect their shares from the start.

Next Steps

Hope this article was able to introduce the concept of collateral relatives to you. If this topic is interesting, please don't forget to download a copy of our booklet by clicking the picture below.

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