A claim refused as a pre-existing condition: your options

Terms used

• Cuestionario de salud — The cuestionario de salud is the health questionnaire you answer when taking out a policy, which the insurer uses to assess the risk.
• Dolo o culpa grave — Dolo o culpa grave means intentional misconduct or gross negligence, the level of fault needed to refuse a claim for wrong answers.
• Carencia — A carencia is a waiting period after the policy starts during which certain services are not yet covered.
• Exclusiones — The exclusiones section lists services or risks the policy never covers.

Key rules

• Burden of proof: The insurer must prove the condition was pre-existing and that you knew of it and hid it.
• Questionnaire: You only had to answer the questions the insurer actually asked.
• Limiting clauses: A clause limiting your cover must be highlighted and accepted in writing, or it may not apply.
• One-month limit: The insurer can cancel for a wrong answer only by notifying you within one month of learning of it.

A refusal is not the final word

An insurer cannot refuse a claim just by saying the condition was "pre-existing". Spanish law sets limits, and the insurer has to prove its case. That gives you real grounds to contest in many situations.

What the insurer must prove

The insurer carries the burden of proof. To refuse cover for a pre-existing condition, it must show that:

• the condition existed before the policy began;
• you knew about it when you answered the health questionnaire (cuestionario de salud);
• you hid it on purpose or with serious carelessness (dolo o culpa grave).

You only need to show that your loss falls within what the policy covers.

You only had to answer what was asked

Your duty was to answer the insurer's questionnaire truthfully. The insurer cannot rely on something it never asked about. Get a copy of the questionnaire and compare each answer with your medical history.

The clause must have been highlighted and signed

A clause that limits your rights must stand out in the policy and be accepted by you in writing. If the pre-existing condition clause was buried in small print and not signed separately, it may not be enforceable.

Courts also separate two kinds of clause. A clause that limits your rights needs that special acceptance. A clause that simply defines what the policy covers does not. Insurers often argue their clause is the second kind, so this point is often disputed.

Waiting periods and exclusions are different

A carencia is a waiting period. Certain services are not covered for a set time, then they are. An exclusion removes a service permanently. A pre-existing limit can take the form of an exclusion, a longer waiting period or a surcharge. Check which one the insurer is using. Look for waiting periods in the table of carencias, exclusions in the section called exclusiones, and pre-existing conditions in the clauses on the health declaration and preexistencias.

If the insurer says your answers were wrong

If the insurer says an answer was inaccurate or incomplete, it can cancel the policy by notifying you within one month of learning of it.

If you had a claim before it gave that notice, it can reduce the payment in proportion to the premium you paid compared with the premium you should have paid.

If it proves intent or gross negligence, it can refuse to pay and keep the premiums for the current period.

For personal insurance such as health and life, the insurer also cannot rely on an inaccurate answer more than one year after the contract began, unless there was wilful misconduct.

Deciding whether to contest

Contest if you answered truthfully, the clause was not highlighted and signed, or the insurer has not shown you knew of the condition. Be more careful if you knowingly left out something the questionnaire asked about. In that case, take advice first. The decision block below sets out the options. The documents list shows what to gather.

If the insurer cancelled or will not renew after a claim, see the related question on that below.

Choosing between options

Should you contest a refusal based on a pre-existing condition?

• Contest the refusal: The insurer cannot show you knew of the condition when you signed, or the clause was not highlighted and signed, or the questionnaire never asked about it.

• Take advice first: You knew about the condition and your questionnaire answers were different, so the insurer may argue wilful misconduct or gross negligence.

• Accept the refusal: The condition is clearly covered by a clause you signed, and you answered the questionnaire truthfully and it asked about this condition.

The insurer must prove the condition existed, that you knew about it and hid it when you took out the policy, and that any exclusion clause was properly highlighted and signed. If it cannot, contest. You still have to show the loss falls within your cover.

Timeline and deadlines

• Answer the insurer's health questionnaire truthfully: when you take out the policy

• If you had a claim before the insurer gave notice, the payment is reduced in proportion to the premium you paid compared with the premium you should have paid: if the insured event happens before the insurer's notice

• The insurer can refuse to pay and keep the premiums for the current period: if you acted with intent or gross negligence

Documents you need

• Your policy contract, with the pre-existing condition clause the insurer relies on. It shows whether the clause was highlighted and accepted with your signature. Your insurer issued it, and you need it.

• The health questionnaire (cuestionario de salud) you answered when taking out the policy. It shows exactly what the insurer asked and what you answered, since you only have to answer what was asked. Ask your insurer for a copy if you do not have one.

• The insurer's written notice of cancellation, if you received one. It shows the date it told you, which matters for the one-month limit.

What to watch out for

• A refusal does not mean the insurer is right: A refusal for a pre-existing condition can fail if the insurer cannot show you knew about the condition when you took out the policy. It must also show you hid it on purpose or with gross negligence. Ask the insurer for the reason in writing and for the evidence that you knew about the condition.

• A clause that was not highlighted and signed may not apply: A clause that limits your cover must be highlighted and accepted in writing. If it was buried in the small print and you never signed it, the insurer cannot enforce it. Get your policy contract and check whether the clause stands out and carries your signature.

• Waiting periods and exclusions are different things: Insurers sometimes call a claim excluded when it falls in a waiting period (carencia), which ends, or the reverse. You may be arguing the wrong point. Find out which section of your policy the insurer relies on: waiting periods, exclusiones or preexistencias.

• Wrong answers on the questionnaire can cost you the cover: If you gave an inaccurate answer on purpose or through gross negligence, the insurer can refuse to pay and keep your premiums for the current period. Compare your answers with what the questionnaire actually asked before you contest, and take advice if they differ.

What if the insurer cancels or won't renew after a claim?

A claim alone is not a reason for the insurer to end your policy mid-term. The insurer can only stop you at renewal, or in the middle of the term for a serious reason such as unpaid premiums or a false answer on your health questionnaire.

During the policy term

A policy with a fixed term binds the insurer until it ends. Making claims does not change that. If the insurer cancels mid-term and the only reason is that you claimed, you can challenge it as an abusive practice under consumer law.

At renewal

The insurer can decline to renew at the end of the term, but it must tell you in writing at least two months before. You can stop the renewal yourself with written notice at least one month before. Your policy may state different notice periods, so check the renewal clause.

Insurers should not refuse to renew only because of your claims history. Health insurance has extra limits on this. Any change to your premium must be notified to you in advance.

When the insurer can cancel over what you declared

You must answer the insurer's health questionnaire truthfully when you take out the policy. If an answer was wrong or something was left out, the insurer can cancel by notifying you within one month of finding out. What happens to a claim depends on timing and fault:

• The insured event happened before the insurer gave notice. The payment is reduced in proportion to the premium you paid compared with the premium you should have paid.

What you can do

1. Ask for the reason in writing. Check the notice date against the periods above.
2. Complain to the insurer's customer service. Do this first, and keep copies of everything.
3. Escalate if the answer is unsatisfactory. You can go to Spain's insurance regulator, a consumer body, mediation or a civil court claim.
4. Apply to other insurers. Ask whether the new insurer will count your time already insured, which would shorten waiting periods. This is not guaranteed and depends on the insurer. A new health questionnaire may lead to exclusions, so answer it fully and truthfully.
5. Use public healthcare if you have the right to it. The national health system stays available while you sort out private cover.

Frequently asked questions

Is a waiting period the same as a pre-existing condition exclusion?

No, a waiting period (carencia) is temporary, while a pre-existing condition limit can be permanent. A carencia is a set time after the policy starts when a service is not covered, and cover applies once it ends.

Where in my policy do I find the pre-existing condition clause?

Look in the clauses on the health declaration (cuestionario de salud) and on preexistencias. Waiting periods sit in their own table or section, and permanent exclusions sit in the section called exclusiones. Knowing which section the insurer relies on tells you what kind of limit it is applying.

Can the insurer cancel my policy if my answers on the health questionnaire were wrong?

Yes, the insurer can cancel by notifying you within one month of learning of the inaccurate answer or omission. If you had a claim before it gave notice, it pays a reduced amount in proportion to the premium you paid compared with the premium you should have paid.

Can the insurer refuse to pay at all because of a wrong answer?

Yes, but only if you acted with intent or gross negligence (dolo o culpa grave). In that case the insurer does not pay the benefit and keeps the premiums for the current period. A simple mistake does not release it from paying in full.