In this article we are going to analyze the disinheritance due to absence of family relationship. Disinheriting is the act of deliberately and expressly excluding a forced or legitimate heir from the inheritance that would correspond to them by law. The Civil Code of many countries recognizes the right of certain family members to receive a part of the inheritance, called legitimate, regardless of the provisions that the testator has established in his will. These relatives are usually the descendants, ascendants and, sometimes, the spouse or de facto couple.

The manifest and continued absence of a family relationship between the deceased and the heir allows disinheritance, if it is for a cause exclusively attributable to the heir (SAP 539/2021).

With the pandemic, the debate has been revived regarding the fair disinheritance, especially in those cases in which there is a absence of family treatment. In Spain, initiatives have emerged at the state level to promote disinheritance reform.

Disinheritance allows the person granting the will, deprive of the legitimate to whom it would be legally attributed. That person who has been disinherited will not receive anything from the The heritage, regardless of their relationship to the deceased. As it is a provision that finally breaks the family bond, the causes for disinheritance are established by law. Disinheriting is not a decision that should or can be taken lightly.

Disinheritance, always in the will

This is why it is only possible to disinherit when a will is granted, since it is a testamentary disposition. If there is no such formal declaration of will, the disinheritance is not “fair.” Is called "fair disinheritance” to that well done. For it to be valid, the legal cause for disinheritance, the disinherited person must be nominally designated (denominations such as “my son, the eldest” are not accepted), and disinheritance cannot be conditioned.

In those cases in which no will has been written, it cannot be disinherited. However the art 756 CCEsp provides for causes of inherited incapacity, which allow the heir ab intestato (without a will) exclude another of the legitimate heirs. If you want to make sure that one of your heirs does not receive anything, you must write a will.

The manifest and continued absence of a family relationship

When considering disinheritance, it is important to note the differences between state law ( art 848 to art 857, CCEsp ) and regional, so the particularities of each case must be taken into account. In the Catalan case, there are five causes of disinheritance, established in the art 451-17 CCCat :

  1. a) The causes of indignity established by article 412-3.
  2. b) The denial of maintenance to the testator or his spouse or partner in a stable relationship, or to the ascendants or descendants of the testator, in cases where there is a legal obligation to provide them.
  3. c) Serious mistreatment of the testator, his/her spouse or cohabitant in a stable relationship, or the ascendants or descendants of the testator.
  4. d) The suspension or deprivation of the power that corresponded to the legitimate parent over the deceased child or of that corresponding to the legitimate child over a grandchild of the deceased, in both cases for reasons attributable to the person suspended or deprived of power.
  5. e) The manifest and continued absence of a family relationship between the deceased and the heir, if it is for a cause exclusively attributable to the heir.

It is this last cause, the "manifest and continued absence of relationship", which affects us. A recent judgment of the Provincial Court of Barcelona (SAP BCN 539/2021) resolves a case of disinheritance due to the absence of a family relationship, and establishes the criteria used to determine if the disinheritance was “fair.”

Absence of link

It is necessary that there is no relationship with the disinherited person, that is, a break in the emotional bond. In front of the others causes of disinheritance, which respond to a violation of basic family duties, the “manifest and continued absence of relationship” responds to an attack against the emotional family bond.

The presence of this cause in the Catalan Civil Code responds to the importance of the emotional bond in current family models. The family relationship can be understood as analogous to the family treatment used in the art 443-5 CCCat (Subordination of succession in adoption to family treatment). When this absence of family relationship is evident and prolonged over time, it will be just cause for disinheritance.

It must be an existing cause at the time the disinheritance is carried out. It must be possible to prove the absence of a family relationship. When analyzing the relationship to prove the existence of a manifest y continued absence, the entire relationship must be taken into account, not only up to the moment of disinheritance. If there has been a subsequent resolution of the conflict, the disinheritance will no longer be valid.

Disinheritance attributable to the disinherited

The absence of a family relationship must be attributable exclusively to the disinherited. Whoever disinherits cannot be to blame for the lack of relationship. For evidentiary purposes, attempts at reconciliation or refusals by the disinherited can be shown. In the sentence (SAP BCN 539/2021) incidents in the family home, witness evidence, lack of contact and spaced visits are mentioned. It is even more evident in those cases in which there are attempted acts of reestablishment of the relationship by the disinheritor, which are met with refusal by the disinherited.

Fair disinheritance is an option available to willers, and can be an answer to difficult situations. From our notary's office we recommend getting good advice, in order to make the best decision. If you want to make your will, do not hesitate to contact us.