Can I disinherit my children?

We know that topic of inheritance is complicated, and therefore questions often arise. For example, whether a son or daughter can be left without an inheritance. According to our legal system, is this possible? At our firm, the best family lawyers in Barcelona will put an end to your questions, since they are former judges.

Current law is quite restrictive when it comes to allowing the disinheritance of direct descendants. The first concept we must clearly understand is the legitime. According to the Spanish Civil Code (CC), the legitime is the portion of assets that the testator cannot use because they are reserved for the “forced heirs”. Therefore, this portion of an estate is untouchable. The only way to deprive the forced heirs of it is by disinheriting them, but this is only possible in extremely serious circumstances.

Just as forced heirs cannot easily be deprived of the legitime, they are also unable to renounce it during the testator’s lifetime. In fact, the CC fully invalidates any agreement between the testator and the forced heir, in addition to the agreed-upon renunciation, if this occurs prior to the testator’s death. However, the legitime can be renounced after the testator’s death. This renunciation must be clear, decisive and explicit.

Who are the forced heirs?

According to the Civil Code, the forced heirs are:

- The testator’s children and descendants (biological and adopted).

- If the deceased doesn’t have children, their parents and ascendants.

- Their widowed spouse (who is entitled to a partial usufruct of the estate).

At ICN LEGAL, we remind you that if a child dies before their parents, the legitime reserved for the parents will be divided equally between the two of them. With regard to the legitime portion of a widowed spouse, the CC indicates that regardless of whether there are descendants, they will be entitled to a partial usufruct of the estate. Of course, this usufruct for widowed spouses is annulled if the couple was officially separated.

The legitime is divided equally between the number of forced heirs, without forgetting that if a child dies before the testator, their grandchildren take their place. The same occurs if the child has been disinherited.

In the autonomous communities of Spain that don’t have their own regional civil code, the forced heirs’ legitime corresponds to one-third of their parents’ estate.  In Catalonia, according to its Civil Code, the amount is smaller, corresponding to one-fourth of the estate, 25%.

Grounds for disinheritance

We can find several grounds for disinheritance in the CC:

- Having refused, without legitimate reason, to support the parent or ascendant disinheriting them.

- Having mistreated or seriously insulted them (psychological abuse).

- Threatening the life of the testator, their spouse, their descendants or their ascendants.

- Accusing the testator of certain crimes.

- Forcing the testator to make or change a will using threats, violence or fraud.

ICN LEGAL’s expert lawyers who are former judges regularly deal with such matters of succession law, and can help you if you have any questions in this regard.

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