What does it mean to disinherit?
Disinheritance in Spain is a legal concept governed by the Spanish Civil Code which allows a forced heir to be deprived of their right to receive part of an estate. However, it cannot be applied arbitrarily, since Spanish law sets out clear limits to protect certain family members.
This article explains what it means to disinherit a child or forced heir in Spain, who can be disinherited, what the legal grounds are under Article 853 of the Civil Code, and what consequences it has.
What it means to disinherit an heir
Disinheritance entails depriving a forced heir of their compulsory share (Article 806 of the Civil Code), that is, the minimum portion of the estate that the law reserves for them.
In Spain, the following are considered forced heirs:
- Children and descendants
- Parents and ascendants (in the absence of the above)
- The spouse
If a testator excludes a forced heir without a valid legal cause, the disinheritance will be deemed unlawful and may be challenged in the courts.
Is it possible to disinherit a child in Spain?
Yes, it is possible, but only where there are serious grounds laid down by law. The Civil Code does not allow disinheritance for mere disagreements, personal conflicts, or lack of affinity.
In Catalonia, in addition, the ongoing absence of family relationship is recognised as a valid ground (Article 451-17 of Book IV of the Civil Code of Catalonia), provided that it is attributable to the child and amounts to a prolonged and unjustified situation.
Legal grounds for disinheritance
The grounds are governed by Articles 852 to 855 of the Civil Code and are divided into general grounds (unworthiness to inherit) and specific grounds, depending on the type of heir.
General grounds (unworthiness to inherit)
Set out in Article 756 of the Civil Code, these are particularly serious forms of conduct that prevent a person from inheriting:
- Attempting against the life of, or causing injuries to, the testator or their immediate family members.
- Committing serious offences against their freedom, moral integrity, or sexual freedom.
- Falsely accusing the testator of a serious offence.
- Forcing the testator to make or amend their will by means of violence, fraud, or threats.
- Preventing or manipulating the free will of the testator in connection with their will.
Specific grounds for children and descendants
- Refusing, without legitimate cause, to provide maintenance to parents or ascendants.
- Physical or psychological abuse, or serious insults towards the parents.
Specific grounds for parents and ascendants
- Loss of parental authority due to a serious breach of legal duties.
- Refusing to provide maintenance to children or descendants without justified cause.
- Attempting against the life of the other parent, where there has been no reconciliation.
Specific grounds for the spouse
- Serious and repeated breach of marital duties.
- Refusing to provide maintenance to the spouse or to the children.
- Attempting against the life of the testator spouse, save where there has been subsequent reconciliation.
How disinheritance is carried out
For disinheritance to be valid, a number of formal requirements must be met:
- It must be set out in a valid will.
- The disinherited heir must be clearly identified.
- The legal ground justifying it must be expressly stated.
- It must be total, and cannot be partial or conditional.
It is important to bear in mind that subsequent reconciliation between the testator and the disinherited heir renders the disinheritance void. Likewise, as a general rule, gifts made during the testator’s lifetime are not affected, unless there is a legal ground for their revocation.
Consequences of disinheritance
Disinheritance has significant legal effects:
- The disinherited heir loses their right to the compulsory share, and is excluded from the estate on the terms laid down by law.
- If the disinheritance is not based on a legal ground or cannot be proven, the affected party may challenge the will in court in order to claim their compulsory share. In such cases, it is for those defending the disinheritance to prove the truth of the ground relied on.
- In the case of disinherited children or descendants, their own descendants (for example, the testator’s grandchildren) retain the right to receive the compulsory share that would have corresponded to their parent, unless there is a legal ground for disinheriting them too.
- Disinheritance does not, as a general rule, affect gifts made during the testator’s lifetime.
- If subsequent reconciliation takes place, the disinheritance is rendered void.
The Spanish Supreme Court has recognised psychological abuse as a valid ground for disinheritance (Supreme Court Judgment 258/2014 and subsequent rulings), requiring that effective harm be caused to the testator.
What to do if you have been disinherited
Faced with a disinheritance, it is important to act with specialist legal advice:
- If you are the testator, you must make sure that there is a valid legal ground and that all the formal requirements in the will are met.
- If you have been disinherited, you can claim your compulsory share through the courts if you consider that the ground is not valid or cannot be proven.
Plan today, avoid disputes tomorrow
We are aware that succession proceedings take place at particularly sensitive times. For this reason, our commitment is to support you in a close and professional manner, taking on the legal burden so that you can focus on what truly matters.
Having advice from experts in family and succession law is essential to ensure that the rights of all parties are protected and that every step taken is fully in line with the law. The right approach from the outset not only provides legal certainty but also helps prevent disputes that may have a significant impact on family life.
We make available to you a team of specialist solicitors, with extensive experience in the comprehensive management of estates. We support you at every stage of the process, from planning through to resolving any situation that may arise, offering solutions tailored to each case.
We help you organise your estate effectively, minimising family disputes and optimising the tax impact, even in complex scenarios such as delicate family relationships, estates with encumbrances, or family businesses.
Whatever your situation, at Blegal we are ready to help you. Please do not hesitate to get in touch with us so that we can analyse your case and offer you the best possible solution.
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