How to sue an estate in Spain
During the time between the opening of the succession, acceptance and acquisition of inheritances, legal relationships may arising lacking ownership. During that time, the estate is said to be recumbent, i.e. it has no owner. However, this does not prevent the estate from participating in legal proceedings.
Under Article 6.4 of the Spanish Procedure Act, it is possible that a person being sued dies during the lawsuit. In such case, Article 16 of the Act establishes the procedural succession by death and contemplates different events that may occur including, as mentioned in point 3: “When the deceased litigant is the defendant and the remaining parties are not aware of successors or they could not be located or would not appear, the process will continue with the legal secretary declaring the defendant in default”.
As noted by Dr. Maria Rebeca Carpi Martin, in an article published in the Journal of Real Estate Law Review in November 2014, to sue an estate according to the criteria applied by Spanish courts, the plaintiff must address all of the heirs to the estate as well as the estate itself. If the claim is exclusively against the defendant heirs personally, the plaintiff may face a declaration of invalidity of the process and feedback of proceedings for breach of form and subsequent vulnerability of other possible or ignored heirs. The claim may also be dismissed for failing to join a necessary party (when the plaintiff litigates against several defendants) or where the defendant lacks legal personality, without assessing the defendant’s possible lack of legitimacy that requires the defendant to repudiate the inheritance.
According to the Provincial Court of Madrid in its resolution 179/2012, Spanish law does not allow inherited goods to be abandoned simply because of remuneration of the inheritance or because the goods have not yet been accepted or refused. An estate has recognised legal standing to sue and be sued in order to safeguard and protect the property and inheritance rights, and to fulfil the obligations belonging to the deceased that were not extinguished by his or her death, or arising from the actual management of the estate.
Furthermore, Spanish doctrine and jurisprudence requires a plaintiff to take extra effort to make all reasonable diligent investigations needed to determine who the heirs are and to locate them. Violation of this duty of inquiry and communication can involve the existence of a fraudulent scheme if it appears that the plaintiff knew or could have known with a minimum level of diligence, the identities of the heirs or the trustee, and deliberately hides or does not track down the information of the defendants so that the proceeding leads to a default (STC 185/2001).
Carlos Triana & Monika Bertram
Mariscal Abogados, Spanish lawyers in Madrid, Spain
Member of Eurojuris España, international network of law firms
