LEGAL REGULATIONS ON SUCCESSION BY SUBSTITUTION

Succession by substitution is an important aspect of inheritance law, aimed at protecting the lawful rights and interests of persons who have a direct lineal blood relationship with the deceased. This mechanism is specifically regulated under the Civil Code of Vietnam 2015. However, in practice, many people remain unclear about how the rules on succession by substitution are applied.
To clarify this issue, CELIGAL Law Firm Limited Liability Company would like to present the following article to our valued readers.

I. What Is Succession by Substitution?

Succession by substitution may be generally understood as the replacement of a person to inherit the portion of an estate that such person would have been entitled to if he or she were still alive at the time the inheritance is opened.

This concept is specifically provided for in Article 652 of the Civil Code 2015, which states:

“Article 652: Succession by substitution

Where a child of the deceased dies before or at the same time as the deceased, the grandchild shall inherit the portion of the estate that his or her father or mother would have inherited if still alive; where the grandchild also dies before or at the same time as the deceased, the great-grandchild shall inherit the portion of the estate that his or her father or mother would have inherited if still alive.”

Accordingly, succession by substitution refers to cases where a grandchild substitutes for his or her parent to inherit the estate of a grandparent, or where a great-grandchild substitutes for his or her grandparent to inherit the estate of a great-grandparent.
Persons inheriting by substitution are entitled to the portion of the estate that their parent would have inherited if alive, and such portion is divided equally, equivalent to one inheritance share among heirs of the same rank.

II. When Does Succession by Substitution Arise?

Succession by substitution only arises in cases of intestate succession (inheritance by operation of law), and does not apply to testamentary succession. Moreover, it applies only to heirs in the first order of inheritance.

This is because where an heir named in a will dies before or at the same time as the testator, the relevant portion of the estate shall be distributed in accordance with the law. Pursuant to Point c, Clause 1, Article 650 of the Civil Code 2015:

“Article 650: Cases of inheritance by law

1. Inheritance by law shall apply in the following cases:
(c) The heirs named in the will die before or at the same time as the testator; or the agency or organization entitled to inherit under the will no longer exists at the time the inheritance is opened.”

Once the estate is distributed according to the law, the lawful heirs are determined pursuant to Article 651 of the Civil Code 2015, which provides:

“Article 651: Lawful heirs

1.      Lawful heirs are determined in the following order:
(a) First order of inheritance includes: spouse, biological parents, adoptive parents, biological children, and adopted children of the deceased;
(b) Second order of inheritance includes: paternal grandparents, maternal grandparents, biological siblings of the deceased; and biological grandchildren where the deceased is the grandparent;
(c) Third order of inheritance includes: great-grandparents; biological uncles and aunts; biological nephews and nieces where the deceased is the uncle or aunt; and biological great-grandchildren where the deceased is the great-grandparent.

2.      Heirs in the same order shall inherit equal portions of the estate.

3.      Heirs in a subsequent order shall only inherit if there are no heirs in the preceding order due to death, ineligibility, disinheritance, or refusal to accept the inheritance.”*

General Conditions for Succession by Substitution

Under the general principles of inheritance in the Civil Code 2015:

• A person inheriting by substitution must be alive at the time the deceased passes away, or must have been conceived before and born alive after the time the inheritance is opened;
• Succession by substitution does not apply if the child or grandchild of the deceased is still alive but voluntarily refuses to accept the inheritance or is otherwise unable to inherit for reasons not involving death;
• The substituting heir must not fall within cases where inheritance rights are denied or revoked.

Special Cases

a. Adoptive Relationships

Although an adoptive child and adoptive parents do not have a blood relationship, they do have a legally recognized parent-child relationship. If an adopted child dies before the adoptive parents, the children of such adopted child are still entitled to inherit by substitution, similar to grandchildren who have a blood relationship with the deceased.

Pursuant to Article 653 of the Civil Code 2015 on inheritance relationships between adopted children and adoptive and biological parents:

“An adopted child and adoptive parents are entitled to inherit each other’s estates and are also entitled to inherit in accordance with Articles 651 and 652 of this Code.”

b. Stepchildren and Stepparents

Where a grandchild is the biological child of a stepchild of the spouse, such grandchild is still entitled to inherit by substitution if the stepchild and the stepparent had a relationship of care, upbringing, and affection equivalent to that of a natural parent and child.

This is stipulated in Article 654 of the Civil Code 2015, which provides:

“A stepchild and stepparent who care for and raise each other as a natural parent and child shall be entitled to inherit each other’s estates and may also inherit in accordance with Articles 652 and 653 of this Code.”

Accordingly, once a lawful adoptive relationship is established, adoptive parents and adopted children have rights and obligations equivalent to those of biological parents and children. Therefore, adopted children are fully entitled to inherit by substitution.

Conclusion

Through this article, CELIGAL hopes that readers have gained a clearer understanding of succession by substitution under Vietnamese law. Should you encounter any legal issues or difficulties, please do not hesitate to contact us. We are confident in providing high-quality and reliable legal services to our clients.