WHAT IS DISINHERITANCE?
Disinheritance is to be excluded from receiving assets, money or distributions from a state or trust.
No one can be disinherited without a testamentary document. If it does not exist, the laws of the intestate succession will come into place and control who inherits what from your state.
The requirements to be disinherited are established in the Spanish Civil Code.
For disinheritance to be without effect, there must be reconciliation between testator and the heir.
The disinherited family member may contest the will. It is the heir who bears the burden of proof.
To properly understand what disinheritance is, it is essential to recall that the legitimate inheritance is the part of the succession that is not possible to dispose of freely after death, since the law imposes its distribution among forced heirs, that is to say, descendants, ascendants and the spouse.
CAUSES FOR DISINHERITANCE:
The causes for disinheritance are listed in articles 852-855 of the Spanish Civil Code, and are numerus clausus, which means that a narrow interpretation must be made when assessing whether a disinheritance cause concurs in a family member, or not.
There are two types:
- Generic causes, which determine the incapacity of an heir to inherit due to unworthiness. They are regulated in article 756 of the SCC.
Some of the generic causes are the following:
- To injure or exercise physical or psychological violence in the family environment.
- To be found guilty for crimes against moral integrity, freedom and sexual indemnity, and family rights and duties.
- To accuse the offender of a crime with a serious penalty.
- To force the testator to make a testament or change it using threat, fraud, or violence.
- To prevent another from making a will, or revoke the one that has been done, or supplants, conceals, or alters a later one.
- Failure to provide due care of a disabled person.
- On the other hand, the specific causes are those directed to the beneficiaries of a deceased person, that is to say, the children and descendants (art. 853 SCC), parents and ascendants (art. 854 SCC) and the spouse (art. 855 SCC).
DISINHERITING CHILDREN AND DESCENDANTS:
The causes for disinheriting descendants are established in Art. 853 SCC.
Some of the causes are the following:
To deny without legitimate reason the alimony to parents or ascendants who disinherits him/her.
To have acted in an injurious way or exercised mistreatment of serious work with their ascendants.
CAUSES TO DISINHERIT PARENTS AND ASCENDANTS (ART 854 CCIVIL)
The causes for disinheriting parents and ascendants are established in Art. 854 SCC.
Some of the causes are the following:
To have lost the parental authority by ruling based on the breach of the duties inherent to the same or dictated in criminal or matrimonial cause.
To have denied alimony to their children or descendants.
To have acted against the life of one of the parents.
SPECIFIC CAUSES TO DISINHERIT A SPOUSE (ARTICLE 855 CCIVIL CODE)
The causes for disinheriting a spouse are established in Art. 855 SCC.
Some of the causes are the following:
To have seriously or repeatedly failed to fulfill the conjugal duties.
Those that give rise to the loss of parental authority.
To have denied alimony to the children or to the other spouse.
To have acted against the life of the testator´s spouse if there has been no reconciliation.
PROOF
The burden of proof is on the testator who decides to disinherit a family member.
The specific cause must be contained in the testator´s will (art. 849 SCC).
If a testamentary document is contested, the heir must provide the necessary evidence that the cause for disinheritance does not concur, ex art. 850 SCC).
EFFECTS OF THE DISINHERITANCE:
The disinherited family member is excluded from receiving assets, money or distributions from a state or trust.
The disinheritance affects only the disinherited family member, therefore, in no case its effects are extended to his children or descendants, who will occupy the place of the disinherited and will preserve the rights of the former.
The disinheritance does not reach the donations, since they can only be revoked for the causes established in art. 856 SCC).
If the heir considers that a cause for disinheritance does not concur, he / she can contest the will, within a settled time period.
A skilled and knowledgeable KAPLAN LEGAL a solicitor can assist you in the overall estate planning process.
Additionally, an experienced estate planning solicitor can ensure that your estate will be distributed according to your wishes, including disinheriting whoever you prefer to be excluded.
At KAPLAN LEGAL we can also claim your inheritance and help you contest a will or trust.