How to disinherit a child or a parent
Disinheritance is the way the law allows to deprive a forced heir of his right to the legitimate one. It can only be done in a will and can only be disinherited for one of the causes expressly indicated by the law, always applying a restrictive criterion that prevents an analogical or extensive interpretation to cases not foreseen.
They are just causes for disinheritance:
1.- Whoever is convicted in a final sentence by:
- to have made an attempt on the life of the deceased, his partner, descendants or ascendants;
- serious injury to the deceased, his partner, descendants or ascendants;
- crimes against the freedom, moral integrity and sexual freedom and indemnity of the deceased, his partner, descendants or ascendants;
- having habitually exercised physical or psychological violence in the family environment on the deceased, his partner, descendants or ascendants;
- have committed an offence against the family rights and duties in respect of the inheritance of the aggrieved person.
2.- Whoever, by a final judgment, has been deprived of parental authority, or removed from the exercise of guardianship or foster care for a reason that is attributable to him.
3.- The person who has not provided the proper care (food, housing, clothing and medical assistance) to the descendant, ascendant or if he or she is a person with a disability.
4.- Whoever has mistreated the parent in deed or has seriously insulted him in word. The existence of psychological mistreatment cannot be based on a subjective appreciation of the testator, but on the existence of real, effective and repeated mistreatment, without valid insults or generic words, as well as disaffection towards the figure of the causer.
The parent who would have made an attempt on the life of the other parent, if there had not been reconciliation between them.
6.- Anyone who falsely reports the deceased for a crime for which the law provides a serious penalty.
The heir of legal age who, being aware of the violent death of the testator, has not reported it within one month to the justice system, except in cases where there is no obligation to accuse.
Any person who, by threat, fraud or violence, forces the testator to make a will or to change it.
Any person who by the same means prevents another person from making a will, or revokes a will, or replaces, conceals or alters a later one.
The descendants of the disinherited will take their place and they will acquire the rights with respect to the legitimate one.
It should be borne in mind that subsequent reconciliation of the offender and the offended excludes the right to disinherit, and renders the disinheritance already made ineffective.
The Supreme Court has told us on several occasions (Rulings 258/2014 of 3 June, 59/2015 of 30 January and the most recent 401/2018 of 27 June) that the legitimate right is configured as a right that can only be taken away from the legitimate one in an exceptional manner when there is a cause for disinheritance: the testator must express the cause - it is not enough to mention generically having a bad relationship -, and the disinherited person only has to deny its veracity so that the other heirs must prove the existence of the cause of disinheritance.
No action can be taken after five years from the time the disinherited person is in possession of the inheritance or legacy.
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