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Disinheriting a legitimate beneficiary is not easy, taking into account that the legítimate share is the part of the inheritance that the testator cannot freely dispose of. Specifically, in Catalonia, the compulsory legitimate share is a quarter of the inheritance, to be divided by the number of children.
In this respect, the right to a reserved share is based on family relations, which are understood to be governed by affection and ties of solidarity.
Thus, the legitimate share is a limitation on the freedom to testate, in order to protect families from abuses - sometimes discriminatory - that can foster disagreements and problems between family members.
However, what happens when the solidarity between generations has disappeared? Is it possible to disinherit a legitimated person? The answer is yes, but with nuances and with very strict requirements.
Specifically, the disinheritance of the legitimated beneficiary in Catalonia is set out in Title V, Chapter I, section four, of Book IV of the Civil Code of Catalonia, relating to successions (Articles 451-17 to 451-21).
Formal requirements for desinheritance
The Civil Code of Catalonia establishes a series of formal requirements. Thus, in order for the disinheritance of a legitimated person to be considered valid, it must be carried out in the following way:
- By will, codicil or succession agreement.
- Nominally designating the disinherited legitimatist.
- Expressing one of the causes of disinheritance that are listed in the Civil Code of Catalonia.
As can be seen, these requirements are very strict, since the disinheritance of a legitimated person from a right granted to him by law constitutes a civil penalty.
Grounds for desinheritance
But what are the causes of disinheritance of a legitimated person? The following:
- Unworthiness to succeed (this cause can be appreciated from having been condemned by a final judgement handed down in a criminal trial for having attempted to kill the testator, to when the will is destroyed, hidden or altered, among others).
- Denial of maintenance to the testator or to his spouse or cohabiting partner, or to the ascendants or descendants of the testator, in cases where there is a legal obligation to provide it.
- Serious mistreatment of the testator, his spouse or stable partner, or the ascendants or descendants of the testator.
- Suspension or deprivation of parental authority, for a cause attributable to the person suspended or deprived of parental authority.
- Manifest and continuous absence of a family relationship, provided that it is due exclusively to a cause attributable to the person who is entitled to receive the compulsory share.
As we said, these causes include motives that would be contrary to the respect, reciprocal assistance and solidarity that should characterise family relations.
Absence of family relationship as a ground for disinheritance
The most controversial of the above-mentioned grounds is the one that determines that a legitimated beneficiary can be disinherited in case of manifest and continuous absence of family relationship.
As indicated above, this ground requires the concurrence of three requirements:
- Absence of family relationship.
- Continuous and manifest nature of the absence of the relationship.
- That the cause of the absence is due, exclusively, to the person who should have received the legitimate share.
This is based on the fact that it would not be equitable if a person who renounces family relations and the support and assistance they entail could later benefit from a legal institution that is based precisely on these family ties.
However, as these are essentially evidentiary requirements, it will have to be determined on a case-by-case basis when such a manifest lack of relationship can be deemed to exist.
It should be noted that the courts rule out that a bad relationship or a quarrel can be considered as being of sufficient importance to establish the absence of a family relationship.
Thus, in order for this cause of disinheritance to be understood as concurrent, it must be a clear case, such as the absence of contact or affectionate care for years.
This is provided that it is solely due to a cause attributable to the person who should have received the reserved portion.
Specific case of disinheritance of a legitimated beneficiary
As a graphic example of the concurrence of the cause of disinheritance of the legitimate share due to a continuous and manifest absence of family relationship in Catalonia, a case analysed by the Provincial Court of Tarragona (Judgement no. 221/2022, of 21 April, of the Third Section) can be cited.
Thus, the Court considered that the lack of relationship between the testator and his daughter was amply demonstrated when there were only four contacts in the forty years that intervened between the end of the termination of the family's cohabitation and the death of the testator, without the grandfather even having met his grandchildren. In addition, it should be noted that, during the father's various hospital admissions, the daughter never appeared.
In this respect, the Provincial Court of Tarragona reflects that, when a father is elderly and ill, and there is no record of any attempt by the son to contact him or try to take an interest in his state of health, it is possible to impute this lack of family relationship to the son and, consequently, to consider that the valid cause of disinheritance is present.
This is due to the fact that, in the last years of the parents' lives, the situation is reversed and their descendants are responsible for their material and emotional protection, especially if they are disabled or ill.
In particular, reconciliation by undoubted acts, or forgiveness granted in a public deed, render the disinheritance null and void, whether they precede the disinheritance or follow it.
In this sense, the law considers them to constitute irrevocable acts.
En este sentido, la ley considera que constituyen de actos irrevocables.
As can be seen, the act of disinheriting a legitimated person entails the assessment of very strict requirements, as well as some very relevant consequences, which is why it is always necessary to have good advice that can resolve doubts throughout the process.
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