Can a child be disinherited in Spain?
In inheritance affairs, a recurrent doubt is if, according to the Spanish Civil Code, it is possible to disinherit a child. The so-called disinheritance is regulated by article 848 and the following articles of the Civil Code.
What does it exactly mean to disinherit?
As the word itself designates, it means to exclude someone from the inheritance, as long as some legal requirements are met.
In order to disinherit, it is mandatory that the testator perform the disinheritance through a will, which must include the legal ground on which it is founded.
In what cases is disinheritance justified?
Below are some of the grounds to disinherit a child as envisaged in articles 756 and 853 of the Spanish Civil Code:
i. To have denied maintenance to the parent or ancestor who is currently performing the disinheritance.
ii. To have seriously mistreated or slandered the parent or ancestor who is currently performing the disinheritance.
iii. When the child has been convicted at trial for attempting to act against the life of the testator.
iv. When the child has slanderously accused his/her parent of a crime imposing a custodial sentence.
v. When the child has forced the parent or ancestor to make or amend the will through threats, fraud or violence.
vi. When the child has impeded the testator to draft a will or to revoke the already existing one, as well as having hidden, replaced or modified a subsequent will.
Apart from the legal grounds explicitly enshrined in the Spanish Civil Code, on the 3rd of June 2014, the Civil division of the Spanish Supreme Court determined that emotional abuse should to be considered as a just reason to disinherit. The Supreme Court reached this conclusion after having understood that, although the Civil Code lists specific cases in which it is possible to disinherit a child, this does not preclude a case-by-case assessment.
Even though emotional abuse is not expressly envisaged as a legal ground on which disinheritance can be founded, the judge understood that, currently, psychological abuse must be understood as an action causing damage or harm to the mental health of the victim. Consequently, as such, emotional abuse should be included in the classic concept of mistreatment, and therefore, the lack of clear and precise case-law on the specific matter shall not constitute an obstacle.
Taking into account the previously exposed information, the Spanish legal order permits the disinheritance of a child as long as legally established grounds are met. Nevertheless, this does not prevent Courts from conducting a case-by-case approach and from considering a particular situation as cause justifying disinheritance. In any case, the burden of proof of the inexistence of a legal cause justifying the disinheritance will fall on the heirs of the testator.
Monika Bertram
