Can I legally disinherit a child?
Disinheriting a child in Spain is possible, but it is subject to strict conditions. It is not enough to exclude him or her from the will: specific legal requirements must be met and, in some cases, strong evidence must be provided.
Legal conditions for disinheriting a forced heir
In order for disinheritance to be valid, the following conditions must be met:
1. it must be made by will - no other document is valid - mentioning full name and relationship of the child.
2. A legal cause contemplated in the Civil Code must be alleged:
- Physical or psychological abuse.
- Unjustified refusal to provide maintenance.
- False accusations and serious criminal convictions.
- Coercion: forcing changes in a will.
- Loss of parental authority.
3. The clause should be drafted precisely, clearly stating the cause.
Who must prove the conduct?
If the child contests the disinheritance, it is the heirs who must prove in court that the alleged cause is real and serious.
Time limit for contesting
The disinherited child has up to 4 years after becoming aware of the will to file a contesting claim.
Legal effects of a valid disinheritance
- The child loses the right to the reserved portion.
- His descendants (grandchildren of the testator) can inherit in his place (right of representation).
Particularities in the autonomous regions
- Catalonia: the reserved portion is 25%, and the lack of a family relationship attributable to the child is a valid cause for disinheritance.
- Basque Country (Bizkaia): allows free disinheritance without just cause by Law 5/2015.
- Other foral territories (Galicia, Navarra...) also have their own rules that may facilitate disinheritance.
Recent changes in Jurisprudence
- In 2019, the SC declared valid the disinheritance for prolonged and culpable absence of family relationship.
- In Catalonia (2023), this ground has been explicitly incorporated in Art. 451-17 CC català.
- In the Basque Country (2015), the greater freedom of testament was consolidated, allowing disinheritance without cause.
Since 2014, case law has modernised the figure of disinheritance, including new grounds such as psychological abuse and family breakdown. These have been formally recognised in Catalonia since 2009, and since 2019, validated nationally by the Supreme Court. In addition, the Supreme Court establishes clear criteria on the need for solid evidence, reiterating that the relationship must be ‘duly broken, prolonged and exclusively attributable to the child’.
