Can a child be disinherited in Spain?

Family conflicts often give rise to very unpleasant situations. In fact, there are times when, as a result of them, many people wonder whether a child can be disinherited in Spain. A tricky and rather complex question that we are going to try to explain as clearly and simply as possible.

How is an inheritance divided?

Understanding how an inheritance is divided is fundamental to understanding the concept of disinheritance. Specifically, it is made up of three parts:

• The reserved portion. This is the third part of the inheritance that is divided equally among the forced heirs, i.e. between the spouse and the children or other descendants if they are deceased.
• The improvement. This third is used to improve the amount of the reserved portion to one or more of the legitimate heirs.
• Free disposition. The last third can be disposed of by the deceased to end up in the hands of his free choice, i.e. without being a legitimate heir. It is not even necessary for him to be a relative.

But why do we say this? Basically, because many people ask us if a disinherited child has the right to the legitimate share. The answer, obviously, is no.

When we refer to disinheritance, what we are really talking about is the deprivation of the legitimate rights of one or more of the forced heirs of the deceased. It would not make sense to apply it to any of the other two thirds, as the Civil Code gives the testator the freedom to distribute them almost as he/she sees fit.

So can a child be totally disinherited?

The answer is yes. However, the requirements and grounds for disinheriting a child set out in articles 852 and 855 of the Civil Code must be met. Here we are going to analyse them.

How can a child be disinherited? Requirements

The Civil Code specifies that, in order for someone to disinherit a forced heir, the following requirements must be met:

• The deceased must have made a will during his lifetime. If he or she died without making a will, it will be impossible to deprive a forced heir of what is due to him or her by way of inheritance.
• In the will, he/she must state his/her wish to disinherit his/her spouse or direct descendant. In addition, the decision must be based on the grounds for disinheriting a child provided for in the Civil Code. We will see them a little further on.
• Verify the grounds for disinheritance. It is most likely that the heir denies the cause. Therefore, it is essential that the testator proves the cause that has led him/her to take the decision, for example, by attaching a court ruling.

In the absence of proof, the rightful heir can claim the will. In all likelihood, a judge will rule in your favour and you will be able to receive your rightful share.

Causes for disinheritance in the Civil Code

In order to safeguard the rights of forced heirs, the Civil Code details the exact grounds on which disinheritance is possible. Firstly, it speaks of generic grounds, which are:

• Having made an attempt on the life, inflicted injury or habitually carried out psychological or physical violence against the testator, his/her spouse, ascendants or descendants.
• Having committed crimes against the freedom, sexual indemnity and/or moral integrity of the testator or any of the aforementioned persons close to him/her.
• Accusing the testator of a crime associated with a serious penalty and subsequently being convicted of a false accusation.
• Forcing the testator to make or change his will against his will.
• Preventing the testator from making a will or modifying a will already made.

All this, of course, has to be proven by a final court judgement.

Can a parent disinherit a child? Specific grounds

Beyond the generic causes cited above, there are specific reasons why the same may be done in respect of a child or descendant. Let us look at them:

• Seriously insulting the parent who disinherits.
• Mistreating the parent who disinherits.
• Denying maintenance to the parent who disinherits.

This basically makes it clear that a child can be disinherited for abandonment without any problem as long as it can be proven to have happened.

Is it possible to disinherit parents and other ascendants?

The Civil Code states that it does. However, there must be certain specific grounds. In particular, we are talking about the denial of maintenance without a legitimate reason, possible attempts against the life of the children and loss of parental authority by a final court decision.

What about the spouse?

Also. This can be done, according to the Civil Code, if the spouse is in serious and repeated breach of his or her marital duties, as well as if he or she makes an attempt on the life of the other spouse, denies maintenance to him or her or his or her children or loses parental authority over his or her descendants.

The effects of disinheritance

Disinheriting a forced heir means that he or she will not be able to obtain his or her share of the one-third of the reserved portion after the testator's death. However, this does not affect possible donations made during the testator's lifetime, as they cannot be revoked.

Another common question when a child is disinherited is what happens to the grandchildren. The answer is simple: they take the place of their parent as forced heirs as far as the legitimate share is concerned. Therefore, it is not even necessary to disinherit a child in favour of the grandchildren explicitly as the Civil Code provides that it happens by default.

In short, we hope we have clarified the question of whether it is possible to disinherit a child in Spain and what are the causes that make it possible. Do not hesitate to contact a family lawyer for any other doubts you may have.