Repudiate or accept an inheritance

Todos, en algún momento de nuestras vidas, tenemos derecho a heredar algún bien. Esta puede proceder de nuestros padres, hermanos o, incluso, de hijos o familiares con un grado de parentesco más lejano. Sin embargo, según lo estipulado en el Código Civil sobre la herencia, también tenemos la potestad de elegir entre aceptar o rechazar. Aquí queremos ahondar sobre este tema.

What is an inheritance?

But, first of all, in order to better understand how and why an inheritance can be accepted or rejected, let's define the term.

As dictated by the Civil Code on inheritance, it is a legal act by which the assets, obligations and rights of a deceased person are transferred to another person who is still alive, who is called the heir. This can take place by means of a will or, in the absence of such a document, by legal order. However, in both cases, the beneficiary has the power to accept or reject it as he or she sees fit.

However, the acceptance of the inheritance can be a process:

• Tacit: if the heirs do not formally express their will to accept but perform acts that they would not be able to perform if they did not have this status.
• Express: if it is agreed by a public act or, for example, a private document between siblings.

On the other hand, if what is desired is to repudiate the inheritance, i.e. to reject it, the process must always be formal and express. Or, in other words, it must be specified in writing.

However, both the acceptance and the repudiation of the inheritance, regardless of whether it is done by means of a private document between siblings or not, are:

• Irrevocable: once the decision to reject or accept the inheritance is made, there is no going back.
• Indivisible: one part cannot be accepted and another rejected, for example.
• Unconditional: acceptance or repudiation cannot be made under any condition.
• Retroactive: the rejection or acceptance will take effect from the moment of the deceased's death, regardless of whether the decision was taken later.

Acceptance or rejection of an inheritance according to the Civil Code

As specified by the Civil Code on inheritance, the beneficiaries of the deceased's assets, rights and obligations have three options:

Accepting the inheritance directly

This option is only advisable if it is certain that the value of the inherited assets and rights is greater than the value of the debts and obligations of the deceased. This is because it implies the acceptance of the inheritance without any nuances, which means that the assets of the heir and the deceased are merged into one.

In this case, in order for the inheritance to be considered to have been tacitly accepted, it is necessary that:

• It is understood that there is cession 'ius delationis': that is to say, that the heir donates, assigns or sells his rights or renounces them in favour of one or more of his co-heirs.
• It is understood that there is a forced or 'ex lege' sanction: or, in other words, that the heirs conceal certain effects of the inheritance. This automatically entails the loss of the power to reject it.

Acceptance of the inheritance with benefit of inventory

Acceptance of the inheritance or benefit of inventory? The latter option is the most advisable when there are doubts about the solvency of the deceased during his lifetime. Fundamentally, this is because it means that the heir does not have to respond to these debts with his or her private assets if he or she accepts the inheritance, but only with the inherited assets. This is therefore a good way of covering one's own back.

Moreover, it does not matter that the testator tried to prohibit his heirs from enjoying the benefit of the inventory, as any of them can apply for it after his death. However, in order to prevent the estate of the deceased and that of the heir from being confused after the acceptance of the inheritance through this system, the following requirements must be met:

• There must be an express provision presented before a diplomatic or consular agent, judge or notary.
• It is also essential that an exact inventory be drawn up in which each and every one of the assets and liabilities that make up the inheritance are listed. The maximum period for the completion of the inventory is 6 months from the time of death. If you do not comply with this deadline or if you overlook any of the deceased's rights, obligations or assets, you will not be able to choose between accepting the inheritance or the benefit of the inventory. You could only choose the first option purely and simply.

However, the taking of an inventory does not necessarily imply the acceptance of the inheritance with benefit of inventory or the rejection of the inheritance. This is because the Civil Code offers the possibility for any heir to request its creation for the purpose of studying his options and choosing the one that suits him best.

Repudiation or rejection of the inheritance

As we said before, the rejection of the inheritance cannot be done tacitly, as the Civil Code specifies that it must be done by means of a formal and express declaration by the heir. This means that he/she will not be able to enjoy any of the assets that make up the inheritance and that these will follow the order of succession determined by the testator or, failing that, the established legal order.

Since the interests and rights of the deceased's creditors may be undermined by the renunciation of the heirs, current legislation provides that, in the event of repudiation, the latter have the power to request the judge to accept them in order to pay the debt and the rights contracted with them.

A problem arises here. The Civil Code provides for a time limit for acceptance or repudiation of the inheritance of 30 years. However, a beneficiary can urge the remainder to decide on acceptance or rejection, which will set a maximum period of 30 days for the decision to be made. The same applies if it is the creditor who urges the heirs to accept or repudiate.

Conclusions on Acceptance and Repudiation of Inheritance

The number of inheritance repudiations in Spain has risen sharply over the last 10-12 years. The reason? The economic crisis severely affected families and meant that many inheritances reached their heirs with large debts. Likewise, the collection efforts of local councils (capital gains, regional and state bodies (inheritance taxes) made them unprofitable for the beneficiaries.

It seems that this trend is beginning to change and that more inheritances are once again being accepted, even if only for the benefit of inventory, than rejected. In any case, it is always advisable to seek the advice of a legal advisor specialised in inheritance wills to guide the interested parties through the process and help them to discern whether or not it is really in their interest to accept the inheritance.