Table of contents
Giving is an act of generosity that one freely disposes of without expecting anything in return in support of another, who accepts it. The recovery of donations and will disputes are topics of great interest among citizens. This is a frequently used alternative to inheritance, most often from parents to children, but also between spouses and even in favour of third parties when a family relationship is not required. Sometimes, however, the donor may have regrets and wish to revoke the gift. A family lawyer will be the best person to advise you on this matter.
As a rule, gifts can be made either verbally or in writing. However, the donation of real estate must be made not only in writing, but also in a notarial deed, i.e. in the presence of a notary.
When can a donation be revoked?
First of all, it must be clear that donations can be made by all those who can dispose of their assets. In the same way, a minor can accept such donations as long as the Judicial Ombudsman rules so.
In order for a person to be able to reverse his or her donation, one of the following cases must be fulfilled:
- Birth of children or appearance of a child who was thought to be dead but is not. If the property cannot be returned within five years from the date of the birth or death of the child presumed dead, the donor has the right to request the cancellation of the donated property or its value. This act is sacred and is transmitted by the death of the donor to his children and descendants.
- Breach of conditions; as stated in Article 647 of the Civil Law, if the donor imposes a series of conditions on the recipient to make such a donation, and the recipient does not comply with these conditions.
- Ingratitude of the donee, i.e. if the donor offends the person, honour and property of the donor. The donation can also be revoked if the donor needs a place to live or is denied food. This is undoubtedly the most important ground for revocation of the three mentioned above and the one most frequently dealt with in court.
How is revocation carried out?
The cancellation must be requested within one year. This point is calculated from the moment the donor becomes aware that he may be entitled to withdraw the contribution.
Donations are cancelled by means of a legal action explaining the reason for the revocation. This is not necessary if the donor voluntarily acknowledges the existence of the reason given and voluntarily accepts the withdrawal of the donation.
Obviously, the donor can act to cancel the donation, but when the donor has an intellectual disability or for any other reason is prevented from acting, the guardian, descendants, ascendants or spouse can do so.
Is it possible to recover the taxes paid if the donation is cancelled?
The donor will be liable to pay personal income tax (IRPF) on the gain or loss. The beneficiary is obliged to pay inheritance and gift tax and city capital gains tax.
As for the refund of the municipal capital gains tax, Article 109(2) on the unification of local tax laws provides that such a declaration must be made, if the refund is legally recognised, with a final ruling.
Is it possible to revoke a donation with usufruct for life?
A life right of use is a right that lasts for the life of the donor and can be revoked whenever he wants, i.e. the usufructuary donor can enjoy the property for life, and if it is real estate, he can live in it or rent it; however, he cannot mortgage it, sell it or dispose of the property.
As long as the usufructuary donor lives, the beneficiary cannot make use of the property. As far as immovable property is concerned, he may not live in it or rent it, and he shall not have full ownership of the property until the usufructuary donor dies.
In order for such gifts to be valid, they must be made in a public deed before a notary and must be accepted by the recipient. The deed of gift must express the will of the donor and the acceptance of the recipient. Another thing that must be done for a donation to be valid is to pay taxes. The last thing that must be done for a donation to be valid for life is to register the deed of donation in the Land Registry. This must be done at the registry corresponding to the place where the donated property is located.
"Anywhere in Spain"
With our online appointment system you will have immediate advice without the need for face-to-face visits or travel.
One of our lawyers specialized in your area of interest will contact you to formalize an appointment and make your consultation by video call.
Add new comment