Woman with Social Security debts waives inheritance and is sued

If a person has debts and receives an inheritance, can he/she renounce it or is it considered a renunciation to the detriment of creditors? This question has been answered by a ruling of the Provincial Court of Cantabria. We explain the case in detail in this article.

The case analysed by the Provincial Court of Cantabria is that of a woman who had debts of 115,000 euros with the Social Security and had renounced her father's inheritance in favour of her children. The Social Security sued her for having acted in fraud of creditors and both the court of first instance and the Provincial Court upheld the woman's claim. We will analyse each element of the case in detail.

What is the renunciation of inheritance?

It is an act that is carried out before a notary by which the heir expressly rejects the inheritance.

In the case we have mentioned, the renunciation is made before a notary in a public deed and this part of the inheritance is left to the two children through the figure of the common substitution that was foreseen in the will. The vulgar substitution consists of another person substituting the heir if the latter is unable or unwilling to accept the inheritance. It may happen that the heir dies before the testator or simply rejects the inheritance.

Is it considered a fraud of creditors to renounce the inheritance if the heir has debts?

In the case we are analysing, the Social Security sued the woman because it considered the waiver to be null and void because it was understood that it had been made to avoid the payment of the debt with the organisation, which was more than 115,000 euros.

The defendant argued that the waiver had been made as a result of a previous family agreement and by the will of the deceased and that the collection of the debt was not avoided because there was no insolvency and because there were other assets that could be seized.

The judge of first instance in Torrelavega considered that the creditor had not used the legal mechanism of article 1.001 of the Civil Code which allows the creditor to accept the inheritance on behalf of the debtor with judicial authorisation. Furthermore, the court considers that the waiver cannot be revoked because it is irrevocable and neither can it be annulled because there are no defects in the consent.

The Social Security appealed the decision to the Provincial Court of Cantabria, which upheld the first instance ruling, insisting that the heir has the right to renounce the inheritance.

This judgement of the Provincial Court can be appealed before the Supreme Court, so it remains to be seen whether the Social Security appeals.

In short, in this case, the renunciation of the inheritance is valid and cannot be annulled unless the provisions of article 1.001 of the Civil Code are followed.

If you have inherited and have doubts about whether or not to accept the inheritance, contact us and we will analyse your case.