Can you disinherit a child or other heir in Spain?

Terms used

• Legítima — The legítima is the share of an estate the law reserves for forced heirs such as children, parents and a spouse.
• Desheredación — Desheredación is cutting a forced heir out of the will for a reason the law allows, stated in the will.
• Maltrato de obra — Maltrato de obra is serious ill-treatment of a person, which can include psychological abuse.
• Injuria grave — Injuria grave is a serious insult, and is a ground for disinheriting a child.

Key rules

• Legal grounds only: A forced heir can be cut out only for a reason the law lists, stated in the will.
• No conditions: A disinheritance with a condition attached is invalid.
• Proof: If the disinherited person challenges, the other heirs must prove the reason.
• Invalid disinheritance: The person then gets their legítima.

The time limit to challenge a disinheritance is not settled, so confirm the current deadline with a Spanish succession lawyer before acting.

Can you cut out a forced heir?

Only on legal grounds. Children, parents and a surviving spouse have a protected share of the estate, the legítima. You can remove it only through disinheritance (desheredación), and only for a reason the law lists. Disliking someone, or a family quarrel, is not enough.

The grounds below apply under the common civil law. Some regions have their own succession rules, so ask a local lawyer if a region's law may apply to you.

What the will must do

• The will must be valid.
• It must state the reason expressly, in the will itself.
• The reason must be true.
• The disinheritance must have no condition attached. A conditional disinheritance is invalid.

Which reasons count

For any forced heir: the serious grounds that make someone unworthy to inherit. Examples are a conviction for an attempt on your life, or serious crimes against you or your family. A disability is no longer a ground.

For a child or other descendant:

• Refusing you maintenance without good reason.
• Serious physical ill-treatment (maltrato de obra) or serious insult (injuria grave). The Supreme Court has accepted that psychological abuse can count as maltrato de obra.

For a parent or other ascendant:

• Loss of parental authority.
• Refusing maintenance.
• An attempt on the other parent's life.

For a spouse:

• Serious breach of marital duties.
• Refusing maintenance.
• An attempt on your life.

The disinherited person can challenge it

A disinherited heir can go to court. Then the other heirs, who gain from the disinheritance, must prove the reason is true. Keep evidence, such as court records, so they can do it.

If the disinheritance is invalid, the person gets their legítima back. If you reconcile with the person, the disinheritance is void. Make a new will to record the change.

If you have been disinherited

See a Spanish succession lawyer quickly. No fixed period is set for this challenge in the rules on disinheritance. Courts have treated the time limit for claiming the legítima differently, and the period is counted from the death. Bring the claim as early as you can. The timeline below shows the steps.

Timeline and deadlines

• The testator dies and the succession opens. This is the date the time to challenge is counted from.: on the date of death

• Speak to a Spanish succession lawyer about challenging the disinheritance.: as soon as you learn of the disinheritance

• Bring the claim for your forced share (legítima) to a court.: within five years of the death

Checklist

• Check that your reason is one of the legal grounds for disinheriting that person, which differ for a child, a parent and a spouse.

• State the reason expressly in the will itself, and make sure it is true.

• Write the disinheritance without any condition attached.

• Keep evidence of the reason, such as court records, because your other heirs must prove it if the disinherited person challenges.

• Ask a local lawyer whether your region has its own succession rules, because some regions differ from the common rules.

• Make a new will if you reconcile with the person you disinherited.

• If you have been disinherited, see a Spanish succession lawyer quickly and bring your challenge as early as possible.

What to watch out for

• No legal ground means no disinheritance: A forced heir can only be cut out for a cause the law lists and that is stated in the will. Anger, distance or a family quarrel is not enough, and the heir keeps their forced share. Check your reason against the legal grounds for that relationship and write it in the will.

• The reason must be true and proved: A disinherited heir can challenge, and the people who benefit from the disinheritance must then prove the reason. If they cannot, the disinheritance fails and the heir receives their forced share. Keep evidence of the reason, and state only facts you can prove.

• Reconciliation cancels it: If you and the disinherited person make up, the disinheritance is void, even if the will still names them. Make a new will so it reflects what you now want.

• A condition makes it invalid: A disinheritance with a condition attached is invalid, and the heir is entitled to their forced share. Write the disinheritance as a plain statement with no conditions.

• Some regions have different rules: The grounds above apply under the common Spanish rules. Some regions have their own rules on disinheritance. Ask a local lawyer which rules apply to your estate.

Frequently asked questions

How long does a disinherited heir have to challenge the disinheritance?

There is no fixed deadline written into the rules on disinheritance, and a five-year limit counted from the death is the most likely period. Older court decisions applied 15 years. Bring any claim as early as you can.

What happens if a disinheritance turns out to be invalid?

If a disinheritance is invalid, the heir is entitled to their forced share (legítima) as if the will had not cut them out. This happens when the cause is not a legal ground, is not stated in the will, or is not proved.

Who has to prove the reason for a disinheritance?

The people who benefit from the disinheritance must prove the reason if the disinherited heir challenges it. They are the other heirs named in the will. If they cannot prove it, the heir keeps the legítima.

Does reconciliation cancel a disinheritance?

Yes, a reconciliation between the testator and the disinherited heir cancels the disinheritance, so the heir is treated as never having been cut out. If you have made up with someone you disinherited, make a new will.