The causes and effects of disinheritance in Spain
Disinheritance, contained in Article 851 of the Spanish Code Civil, relates to the deprivation of one of the heirs status as heir and his or her corresponding inheritance gift. In Spain, the only possibility of denying legitimacy is when certain established causes for particularly serious acts against the person of the testator occur.
So that the disinheritance takes place, the following requirements must be met:
- The disinheritance must be stated in the will. This is a basic and essential condition. The testator may write the will solely to disinherit a person, in which case, the laws of intestate succession become operative while excluding the disinherited
- The will must expressly state the cause of the disinheritance
- The disinheritance should be nominal, expressly designating the disinherited
- The disinheritance is either pure or conditional when the conditions set out in a will by the deceased have not fulfilled
Grounds for disinheritance
Disinheritance can only be assessed on the grounds of the Spanish Civil Code. The reason must be true and must be proven. If there is doubt as to whether or not a cause occurred, the disinherited can deny the lawsuit, and the heirs will have to prove in court that this cause is true. That is, the disinherited makes the demand and the heirs answer the demand.
- General causes (Article 852 CC) are causes of unworthiness
- Special causes regarding children and descendants (section 853 CC)
- Denial of food: punishment because the child unjustifiably denied food that correspond to the parent or ancestor
- Physical or verbal abuse (serious offence) of the parent or ancestor. Cases of abandonment are also included
- Special causes of ascendants (section 854 CC):
- Denial of food, when parents deny food to children
- Breach of parental duties
- Attacking the other spouse unless there has been reconciliation between them
- Special cases regarding spouses (Article 855 CC):
- Deprivation of food towards the spouse or towards the children
- For deprivation of parental authority in favour of the children
- Serious and repeated breach of the conjugal duties
- Threatening the life of the other spouse
Effect of disinheritance
There are two scenarios:
- If the disinheritance was fair and the requirements are met:
- The heir loses his or her status as heir
- If a gift consisted of a donation, the donation will no longer be valid, but becomes part of the third free disposal
- If the disinherited child has children, their descendants have the right of representation in the entire inheritance in place of the disinherited child
- If the disinheritance is not fair and no requirements are met:
The disinherited has a right to rescission so that what has been terminated and the disinherited is once again included in the will. The establishment of heir is judicially annulled. That is, the disinherited heir demands and calls for rescission.
Sometimes, even if a cause for disinheritance exist, it will not be effective:
- When the deceased did not assert
- When the deceased forgives the disinherited of the cause, in which case there must be proof of the forgiveness
Carlos Hernández & Monika Bertram
