V. is almost 80 years old. Divorced for ten years, he spent most of his career as a university professor in Madrid. From an early age he wanted to give his two children the best possible education. He sent his eldest son to England for five years to study economics. He says he provided her with a Visa card to cover all of her expenses during her stay.
“I didn’t want him to miss anything and just focus on his studies. But I haven’t heard from him in seven or eight years. He doesn’t talk to me anymore and has blocked me on his phone. When we last saw each other about the sale of a property I owned with my ex-wife, he insulted me. I experienced it very badly. That’s why I went to a notary last year and disinherited him. He doesn’t deserve my legacy.”
The man has an inheritance of almost 500,000 euros. At his death, he will go entirely to his other son, with whom he flatters himself that he has an extraordinary relationship. The case of this old man is no longer exceptional in Spain, where a few years ago it was extremely difficult to disinherit a child, except in the case of refusing food assistance to his father, taking his life or committing something serious Indignation.
Spain has allowed parents to make such decisions about passing their inheritance to their offspring for eight years, despite the legal complexity of the process. In June 2014, a Supreme Court decision established jurisprudence on the matter.
After a request for review [d’une précédente décision de justice] made by two children of a man from Ronda (province of Málaga) who had lost the inheritance, the judges ruled in favor of the sole heir, her aunt, sister of the deceased. The Supreme Court found that the psychological abuse the children inflicted on their father constituted valid grounds for disinheritance.
In 2014 alone, according to the Legálitas Legal Observatory, the number of parents considering depriving their offspring of their inheritance increased by 18% compared to the previous year (with 1,333 legal consultations versus 1,130 in 2013). ). Lawyers currently estimate that up to 600,000 Spaniards would like to disinherit one or more of their children.
These figures do not surprise Inmaculada Marín, secretary of the Spanish Association of Family Lawyers (AEAFA): “They have seen an exponential increase since that first Supreme Court ruling. The pandemic is also having a noticeable impact. Many people found themselves in a situation of abandonment.”
However, there is no official register of those who have expressed their willingness to disinherit as the content of this document is confidential. However, the Spanish Notarial Code states that it registered 4.2 million individual wills between January 2015 and December 2021.
“If he doesn’t take care of you, he doesn’t inherit”
Among the notaries we contacted, some have confided that 5% to 6% of the files they have to deal with show a desire to exclude heirs from an estate. If this development is extrapolated to all notaries in the country, between 214,000 and 257,400 wills with disinheritance provisions would have been drawn up during this period. Some of the country’s specialist law firms estimate that they have had five times as many clients seeking advice on the subject since 2014.
Notaries, the last link in the succession, are also registering an increase in corresponding inquiries in their offices. “There is no doubt, confirms Rafael Díaz-Vieito, who practices in Cordoba. You can’t really say there’s a boom in Spain, but we’re getting a lot more people than we used to want to disinherit their heir presumptive.”
In Fuenlabrada (in the Madrid region), a cultural association for the elderly (Acumafu) offers legal advice to anyone considering this process. “Our motto is simple: “If he doesn’t take care of you, he doesn’t inherit”, explains its President, Marcelo Cornellá. We try to mediate between parents and children in order to get in touch again. If this is not possible and the disinheritance requirements are met, we will forward the file to our lawyers.” The association records peak values of 200 to 300 consultations per week.
Two years ago, Vicente was disinherited by his father, a former soldier who lived in Segovia. He found out when he opened the will. The unemployed 54-year-old bachelor says he had a conflicted relationship with his father, who denied him an inheritance of around 120,000 euros.
“All his fault was mine, not my two brothers who spent their lives with their families. I was hard on him: I told him he deserved to be left alone, that we’d see how he made it. He had had the good life, and after he retired he got his pension and pension. And I, I lived on his hooks. I never thought for a moment that he would disinherit me. When I realized that, it was one of the hardest blows of my life. It took me months to admit that I hadn’t treated him well.”
The case law of 2014
On March 30, 2011, the Provincial Court of Málaga upheld the disinheritance of José Antonio and Remedios, two children of Florencio from Ronda, who lives in Germany. Her father, who had emigrated to Central Europe in search of work, had divorced her mother and the children had separated from him. When he retired – he was an employee of Bayer’s pharmaceutical laboratory – Florencio returned to his village. He only lived there for the last seven years of his life, but it was his sister, also called Remedios, and her family who always took care of him.
One day Florencio said to his sister Remedios: “All my property will be yours.” It was 2001. Shortly before that he had gone to the notary. He wrote that he had disinherited his children, who neglected him, insulted him when they lived together and had never called him since he returned to the village. He died in Ronda on July 22, 2003.
“He was totally marginalized”, indicates the verdict of the court consulted by our editorial team. The two aggrieved children decided to appeal to the Supreme Court and demand it “The testamentary disposition is declared null and void” who they thought they had “unfairly disadvantaged”. On June 3, 2014, Remedios’ nephews suffered another setback. This time the final decision of the court was made: Your appeal was dismissed.
“Mental abuse, as an act that establishes injury or damage to the mental health of the victim, should be considered to fall under the physical abuse provision.”, underlines the judgment of the court, referring to one of the articles of the Civil Code that regulates the causes of disinheritance.
“The children are guilty of repeated mental abuse of their father, continues the document. This condition was clearly felt in the last seven years of his life.”, When, “already ill, he remained under the protection of his sister, without his children showing any interest in him or having the slightest contact with him, a situation that changed after his death, only to assert their rights to the heirs.”
“Is it possible to disinherit her?”
The following year, in March 2015, the Supreme Court made another, almost identical ruling. Since then, cases of disadvantaged children have continued to multiply. In the same year, the Spanish Basque Country passed a law guaranteeing the testator complete freedom of choice, as was already the case in Navarre. Today, in the Basque community, every tenth will contains a clause aimed at disinheriting one or more children.
Three lawyers, who preferred to remain anonymous out of concern for their clients, confirm that this new inheritance regime has prompted some to settle in the region alone in order to omit one or more of their descendants from their wills. To do this, they must prove that they have lived in Basque territory for at least ten years.
Since 2019, the Catalan Parliament has also been examining a bill to align its autonomous legislation with that of the Basque Country. Currently, children in Catalonia and Galicia can only claim a quarter of the estate’s value.
In early February, 80-year-old Eugenia was received by an office of a law firm in Jaén and told a lawyer: “I want to disinherit three of my five children. I want to bequeath everything I have, small or large, to the other two, the only ones who feel sorry for me. These three, I must say they are my children since I am their mother, but they don’t deserve it. They haven’t come to me for years, they don’t call me, they don’t bring the grandchildren to me. Mind you, I only know three of the six. The fact that they live abroad is just an excuse. And when I call them, they have nothing but contempt for me. Tell me, is it possible to disinherit her?” “Exactly, ma’am,” replied the lawyer, accustomed to inheritance.
Calls for reform of inheritance law
Eugenia lives in a village near Jaén, Andalusia. She has been a widow for twenty years. She comes from a wealthy family with businesses in several sectors: oil, construction, catering. In addition to her 250,000 euros in the bank, she owns several olive groves in the province, rents three houses in Jaén and Bailén and has a second home in Marbella, where she spends a few months a year. she wants “everything” left a son and a daughter.
“I don’t live with them, but they take care of me, she specifies. They have their lives, but they take care of their mother.” In a few days she will go to a notary she trusts in Jaén to see what he advises her.
“I really don’t want them to have any problems if the other three find a way to contest the will. I want to tie all this together so as not to leave any slack.
To avoid the kind of situation Eugenia fears, notaries like Rafael Díaz-Vieito from Córdoba are arguing for it “a far-reaching reform of inheritance law” in Spain. “It is an inevitable reform. It is difficult to defend a system of compulsory heirs, such as that provided for in the Civil Code of 1889, which obliges a testator to leave two-thirds of his property to his children, adds the lawyer. We need to change legislation to give citizens virtually absolute freedom in distributing their property or, failing that, to significantly reduce the amount of the hereditary reserve by turning it into a simple debt.”
From her office in Malaga, Inmaculada Marín, lawyer for AEAFA, explains that she represents the association “brings together multiple sensibilities and opinions, each as valid as the other”. She personally advocates a reform of the Civil Code because she considers it “Spanish families have changed” and “The concept of the reserved part doesn’t make much sense.” “I defend the principle of autonomy of will. And even the freedom to make mistakes when removing an heir from your estate.” She closes:
“What we usually remind our clients is that if their children have children of their own, the inheritance does not go to their grandchildren. Sometimes that argument is quite chilling.”