Due to new societal realities and new family models, it is becoming increasingly common for many parents to consider not bequeathing their property to their children at the time of their death. The question many parents ask is: Can I disinherit my children if I have no contact with them and they don’t want to have one? Can I withdraw my child’s inheritance if we are not related?
According to Spanish law, if you die, if you have a child, that child has the right to inherit simply because it is your child. This is referred to as a “compulsory heir”. This number is regulated by Article 807 of the Spanish Civil Code.
It is clear that the latter, just by being your child, has the right to inherit. But is this right unlimited? Is there a way for my children not to inherit if they have no relationship with me?
In the law there are different legal figures that take this situation into account: thedisinheritance of children and the causes of inheritance.
The causes of disinheritance in Spain
Legislation provides certain grounds for disinheritance, which vary by testator and guardianship register.
If a father disinherits his child, Article 853 of the Spanish Civil Code applies:
“For the disinheritance of children and descendants, in addition to the reasons mentioned in Article 756 under numbers 2, 3, 5 and 6, the following reasons can also be considered:
1.- Has refused maintenance to the father or ancestor who disinherits him without good reason.
2.-Having abused or seriously slandered him.“
In addition, the causes provided for in Article 756 of the Spanish Civil Code are the following:
“2.- Anyone convicted by a court order of undermining liberty, moral integrity and sexual freedom and integrity when the victim is the deceased, his spouse, the person with whom he is linked by an analogous relationship (partner) or one of them is his descendants or ancestors. Likewise, the person who has been sentenced to a severe sentence by a final court order for committing a crime that interferes with the rights and family responsibilities in relation to an injured person’s inheritance. Likewise, a person who has been deprived by court order of the exercise of parental rights, the exercise of guardianship or care rights, or the exercise of the care of a disabled person for a reason attributable to him or her in relation to that person’s inheritance.
3.º Anybody who would have accused the perpetrator of an offense for which the law provides for a severe penalty if convicted of making false statements.
5º.- Anyone who, by threat, fraud or violence, compels the testator to make or amend a will.
6º.-Anyone who, by the same means, prevents another from making a will or revokes the will made by him or replaces, conceals or alters a later will.“
All of these grounds are provided by law for a child to be disinherited. If none of them are fulfilled or cannot be proven, the testamentary disposition of the testator is not valid. It is imperative that it exists and can be proven.
The causes of inheritance
We have just seen what disinheritance consists of, what the necessary conditions are, and what its causes are. We will further examine what the causes of inheritance are, what the conditions are and how they work in practice.
Unlike disinheritance, the causes of unworthiness do not have to be stated in the will. In addition, in practice they are asserted by the other heirs without the testator having to make a disposition. In this sense, they can occur both in testamentary succession and in inheritance by will. However, their interpretation is always restrictive given their repressive nature.
The causes of unworthiness of the inheritance are those regulated by Article 756 of the Civil Code already mentioned.
Alonso Román & Asociados is a Franco-Spanish bilingual law firm with over 20 years of experience and offices in Madrid and Paris.
The law firm has a department specializing in family and inheritance law that manages inheritances, gifts, wills, divorces, separations, guardianships, powers of attorney, etc. The department is also responsible for settling the taxes related to each of the procedures, studying the best tax solution for each case.
The law firm specializes in cases involving French and Spanish people and has knowledge of the regulations in force in each of the two countries.
Alonso Román & Asociados also has specialized departments in the following areas: labor law, criminal law and civil and administrative law.