Are our grandchildren heirs?

Are our grandchildren heirs?

"I've been married for over 35 years under the regime of separation as to property. I'd like to know who will inherit on the death of my husband, who is seriously ill. We had two children who are already the parents of 2 children each. Will my grandchildren also receive a share of their grandfather's inheritance by law?

J, Onex

First of all, the surviving spouse is a legal heir within the meaning of the Civil Code (CC) - even if the spouses have suspended their cohabitation - for as long as the marriage has not been dissolved, in the same way as members of the deceased's family.

For the latter, art. 457 et seq. of the Civil Code establishes a system of "kinships": the first kinship is made up of the descendants of the deceased and also includes his or her grandchildren and great-grandchildren; the second kinship is made up of the father and mother of the deceased, as well as their descendants (brothers and sisters of the deceased, nephews and nieces, etc.); finally, the third kinship includes the grandparents of the deceased and all their descendants (aunts, uncles, cousins, etc.).

Relatives are ranked in order of priority in the succession. Thus, if there is at least one member of the first kinship, that person inherits the entire estate, to the exclusion of the members of the second and third kinships. Therefore, if a child of the deceased is alive, he or she will inherit everything, in competition with the surviving spouse who is always entitled to part of the estate. Furthermore, even within a family, the person who inherits temporarily excludes his or her own descendants from the estate. The latter will inherit what is left later, when their own parent dies.

In your case, as your two children belong to the first line of descent, they exclude their own descendants from the succession. As a result, your grandchildren are not your husband's heirs for the time being. Since you are married under the regime of separation as to property, your husband's estate will consist of all his property on the day of his death, of which you will receive half and your children a quarter each.

Finally, it is worth remembering that if your husband wishes your grandchildren to inherit directly on his death, or if he intends to favour one or other of your children or even yourself within the limits laid down by law, he can draw up a will or propose an inheritance agreement.