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Children are usually the most important people for their parents. But that is not always the case.
Sometimes relationships go sour or children behave in a harmful way towards their parents.
In such cases, parents may deprive their children of their right to legitimate inheritance they are entitled to simply by being their offspring.
Let’s take a closer look.
Who are the legitimate heirs?
According to article 807 of the Civil Code, the legitimate heirs or forced heirs are:
- Children and descendants in relation to their parents and ascendants.
- In the absence of the above, parents and ascendants in relation to their children and descendants.
- The widow or widower in the manner and to the extent established by this Code.
Can a child be disinherited?
There is a lot of information on the Internet that specifies how the inheritance must be distributed and what the legitimate share is — the part that belongs to children or successors.
This raises the question for many people: Can a child be disinherited, even if they are entitled to the legitimate share?
The short answer is yes. However, it is not that simple.
To disinherit a child, it must be done in the will, where the reason for the disinheritance must be specified.
Requirements for disinheriting a child
To legally disinherit a child, the following requirements must be met:
- This must be done through a will. The reasons for disinheritance must be clearly stated, relying on one of the reasons established by law. It is essential to explicitly specify which child is to be disinherited.”
- The reason must be certain and provable. It is important to be able to prove the veracity of the reason, leaving the responsibility of proving it to the heirs of the testator.
- The affected legitimate heir may annul the designation of the heir with regard to their legitimate share. If the reason is not specified in the will, the reason is not legitimized by law or an uncertain reason is alleged.
Therefore, in situations where disinheritance does not comply with the legal provisions, the disinherited legitimate heir has the right to claim their legitimate share of the inheritance.
What are the reasons for disinheriting a child?
It is not possible to disinherit a child or any other forced or legitimate heir without a valid reason.
The reasons for disinheritance may include:
- Denying food to the parent who is disinheriting without a legitimate reason.
- Physical abuse or serious verbal insults to the parent.
- Being convicted by a final judgment for attempting against the life of the testator, causing injuries or engaging in habitual physical or psychological violence within the family.
- Conviction for crimes against freedom, moral integrity and sexual freedom and indemnity, if the victim is the testator, their spouse, partner or any descendant or ascendant.
- Conviction for serious crimes against family rights and duties in relation to the testator.
- Falsely accusing the testator of a crime that carries a serious penalty and being convicted of false accusation.
- If, being of legal age and knowing about the violent death of the testator, the heir fails to report it within one month, provided that the authorities have not acted ex officio.
- Coercing the testator by threat, fraud or violence to make or modify a will.
- Preventing another person from making a will or revoking it, or replacing, hiding, or altering a later will through the same means.
- In the case of the succession of a disabled person, disinheritance may proceed if those entitled to the inheritance have not provided the necessary care.
If the disinherited person denies the reason for being disinherited, the rest of the heirs of the person who made the will must prove that the reason is true. In the event of a conflict, if the offender and the offended party reconcile, the offended party loses the right to disinherit, and any disinheritance that has already been made is annulled.
Who will inherit from someone who disinherits?
If any of the reasons we have listed in the previous section occur, the inheritance will be missing one or more of the individuals who are supposed to receive it. So, what happens?
In this case, the children or other descendants of the person who has been disinherited will take their place and will have the same rights as forced heirs regarding the legitimate share. The legitimate inheritance is the portion that, by law, must be left to the children and descendants, and it represents two thirds of the estate of the deceased. However, sometimes one may not want to transfer all of that wealth to the children. To do so, one of the reasons listed must be met, and the established requirements must be fulfilled. In that case, it will be the descendants of the disinherited person who will receive the legitimate share that their parents were not entitled to.
Further information
This article is part of our service Inheritance in Spain. Visit this section where you will find all the useful information on this topic, including a complete guide on Inheritance in Spain with a non-resident, expat or foreigner.
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