How to disinherit a child in Spain: legal grounds, requirements and errors that invalidate a will

In Spain, it is possible to disinherit a child provided that the requirements set out in the Civil Code are met. It is not straightforward, as in most cases a court judgment is required.

Can I disinherit a child?

The answer is yes. In fact, the Civil Code provides for the possibility of disinheriting a child or any other forced heir (one who is entitled to receive the reserved third of the estate under a will, or an equal share if there is no will) in Articles 756 and 853–857.

That said, once it is clear that a child can be disinherited in Spain, it is time to look at the details. As anyone who has tried will know, this is quite a complex process, as the grounds must be justified and proven. Otherwise, the decision can easily be challenged.

What does it mean and involve to disinherit a child?

Disinheritance is a term that means depriving someone of their right to claim their reserved share, that is, the assets to which they are entitled by virtue of belonging to a particular family.

You will have noticed that we have referred to the concept of the reserved share rather than the inheritance itself. This is for a very simple reason: in any estate, the testator is only obliged to distribute one third of their assets among their forced heirs, as they may allocate the improvement share among them as they see fit and leave the free disposal third to whomever they choose, without any legal restriction.

The situation would be different if the deceased had not left a will, since in that case the forced heirs must divide the estate equally among themselves. However, disinheriting a child must be carried out by means of a will, as we will see below.

Grounds for disinheriting a child in Spain

The Civil Code establishes both general and specific grounds for disinheriting a child in Spain. We will focus on the general grounds, which are set out in Article 756:

• Ingratitude: this occurs when the child commits an act of extreme seriousness within the family, such as attempting against the life of their parents, causing serious injury to other members of the household, or harming the moral integrity of the family unit. The same applies if they lose parental authority rights as a result of committing an offence against family rights and duties. In all cases, the situation must be supported by a court judgment.
• Neglect or abandonment: if a child fails to provide their parents with the help or care they require in times of need, whether through negligence or deliberate decision, they may be disinherited. This would be the case, for example, if they refuse to care for them after a serious surgical procedure.
• Coercion to make or amend a will: the child must not use physical force or threats to do so. If proven, the will would not only be rendered invalid, but they could also lose their reserved share.
• Unfounded accusation: when the child accuses their father or mother of having committed a serious offence (for example, assault) and is convicted of making a false report.

Additionally, the Civil Code also provides for certain specific grounds for disinheritance, namely serious physical abuse, serious verbal insults and the unjustified refusal to provide maintenance to their parents. In all these cases, a mother or father may disinherit a child with full legal protection.

How can a child be disinherited in Spain?

The reserved share is a right that any person has simply by being born of the relationship between their parents, regardless of whether they were married to each other or to other people, or any other imaginable circumstance. For this reason, losing it is not easy. In other words, children can be disinherited, but it is essential to justify the decision properly and follow the required steps so that it cannot be revoked.

Making a will is essential

The only way in which a person can decide what will happen to their assets after their death is by making a will. In this regard, the most advisable option is an open will before a notary, as it is the most difficult to challenge.

In that document, the testator must record their decision to disinherit a child. This can be done explicitly, by stating which descendant is excluded from the distribution, or implicitly, in which case it is sufficient not to mention them. In any event, the decision must be fully justified.

The evidence you must gather

It is always advisable to identify the child who has been disinherited. In addition, the will must include which of the grounds set out in the Civil Code justifies the deprivation of the reserved share. But what kind of evidence are we referring to? These are some examples of evidence considered valid:

• Burofaxes and/or notarial requests addressed to the descendant requiring them to fulfil their family responsibilities, such as providing proper care to their parents in situations of extreme need.
• Medical reports of illnesses or accidents that required their care and which they failed to provide.
• Medical reports of injuries caused by assaults by the child.
• Previous complaints, for example for refusal to provide maintenance, for physical or psychological abuse, or for any other situation provided for as grounds for disinheritance.

This last point is important. The mere fact of having filed a complaint against your child, even if there is a final court judgment convicting them of the offence of which you accused them, does not mean that they are automatically deprived of their reserved share. You can disinherit a child, yes, but it is essential that you state this in your will.

Other aspects to consider: gifts and reconciliation

You may decide to disinherit your child after having made lifetime gifts to them corresponding to part of their reserved share. If so, you should be aware that the matter becomes considerably more complex, as gifts benefit from additional protections that make their recovery very difficult.

For this to be possible, the ground justifying the revocation of gifts made to forced heirs must be the same as that justifying the disinheritance. This would be the case, for example, in situations of coercion through physical assault or threats, as this would imply that you did not transfer your assets freely or in exchange for a symbolic price, but rather that you were compelled to do so out of fear.

On the other hand, if you reconcile with your child, the disinheritance becomes ineffective. You will simply need to amend the will to avoid any legal issues after your death.

Yes, it is possible to leave a child without an inheritance

At this point, it is clear that although the law gives you the power to deprive any of your descendants of their reserved share if the legal requirements are met, this is a complex matter. For this reason, it is vitally important to seek advice from an specialist inheritance lawyer throughout the entire process. Only in this way can you be certain of complying with the applicable law and ensuring that your wishes are respected once you are no longer here.