Disinheritance is a legal mechanism that generates significant emotional and legal controversy within Spanish families, yet it is governed by a highly specific regulatory framework that is essential to understand before taking irreversible decisions.
In Spain, the succession system provides special protection to forced heirs through the system of legitimes, but there is a legal possibility to deprive these heirs of their hereditary rights when very specific causes established by law are present. Disinheritance is not a decision that can be taken lightly or for emotional reasons; rather, it requires strict compliance with legal requirements.
What Is Disinheritance and When Can It Be Applied?
Legal concept of disinheritance
Disinheritance constitutes an exceptional testamentary provision whereby the testator voluntarily deprives a forced heir of the right to the legitime, based solely on one of the causes expressly established by the Spanish Civil Code. This legal figure represents an exception to the general principle of protection of legitimaries that characterizes the Spanish succession system.
Article 848 of the Civil Code categorically establishes that “disinheritance may only take place for any of the causes expressly indicated by law.” This provision underscores the exhaustive nature of the causes for disinheritance, which means that it is not possible to interpret these causes extensively nor to apply analogies to similar situations that are not expressly contemplated in the regulations.
Difference between free estate and legitime
To properly understand the scope of disinheritance, it is essential to distinguish between the freely disposable share and the legitime in an estate. In the Spanish succession system, testators cannot freely dispose of all their assets when forced heirs exist. The legitime, which generally represents two thirds of the hereditary estate when there are descendants, is reserved by operation of law for the legitimaries.
Disinheritance affects only the legitimary portion, not the freely disposable share of the estate. This means the testator may freely exclude any person from the freely disposable portion without any justification; however, to deprive a legitimary of the legitime, a specific legal cause must necessarily be present.
Legal Causes of Disinheritance Under the Civil Code (Arts. 852–855)
General causes applicable to all legitimaries (Art. 852)
Article 852 of the Civil Code refers to the causes of incapacity to succeed (indignidad) set out in Article 756, establishing as general causes of disinheritance the following situations that have been the subject of a final criminal conviction:
Attacks against life and physical integrity: This includes having been convicted for attempting against the life of the testator, the testator’s spouse or partner, as well as causing bodily harm or exercising habitual physical violence within the family setting.
Crimes against liberty and personal dignity: This encompasses convictions for crimes against liberty, moral integrity or sexual freedom when the victims are the testator or persons in the testator’s close family circle.
False accusations: It is a cause of disinheritance to have falsely accused the testator of a serious crime, provided there is a final conviction for false reporting.
Testamentary coercion: This includes having compelled the testator by threat, deceit, or violence to execute a will or modify an existing one, as well as having prevented another person from making a will by the same means.
Specific causes for disinheriting children and descendants (Art. 853)
Article 853 of the Civil Code establishes specific causes that allow the testator to disinherit children and descendants, in addition to the general causes already mentioned:
Loss of parental authority: When the child has been deprived of parental authority by a judicial decision based on the failure to fulfill the duties inherent to it.
Physical abuse or serious verbal insults: This cause has undergone significant jurisprudential evolution, extending the concept of “physical abuse” to include psychological abuse under certain circumstances that are analyzed in detail below.
Refusal to provide maintenance: This refers to the serious and continued failure to fulfill the legal duty to provide maintenance to the ascendant when the ascendant is in a situation of need.
Prohibited relationships: This encompasses specific situations related to the moral conduct of the descendant that the law considers especially serious in the family context.
Causes for disinheriting ascendants (Art. 854)
Ascendants may be disinherited for causes reflecting the failure to fulfill their fundamental duties as parents: … Loss of parental authority: When the parents have been deprived of parental authority by final judicial decision.
Unjustified refusal to provide maintenance: When the ascendants have refused maintenance to the descendant who subsequently disinherits them, without a justified cause for doing so.
Attempt against the spouse: This specifically includes the case in which one of the parents has attempted against the life of the other spouse without a subsequent reconciliation.
Causes for disinheriting the spouse (Art. 855)
The surviving spouse may be disinherited for causes reflecting serious non-compliance with marital duties:
Serious breach of marital duties: This covers situations of repeated and serious non-compliance with marital obligations.
Refusal to provide maintenance: This includes the unjustified refusal to provide maintenance to the spouse or to the common children.
Attempts against life: This specifically contemplates having attempted against the life of the spouse.
Psychological Abuse as a Cause of Disinheritance: Jurisprudential Evolution
Interpretation of “physical abuse” in the 21st century
One of the most significant jurisprudential developments in matters of disinheritance has been the expansion of the concept of “physical abuse” contemplated in Article 853.2 of the Civil Code to include psychological abuse. This evolutionary interpretation responds to the need to adapt nineteenth-century succession rules to contemporary social reality, where it is recognized that psychological harm can be as serious as physical harm.
The Supreme Court began to develop this doctrine in 2014, establishing that “psychological abuse is configured as an unjustified conduct of the heir that causes a detriment or injury to the testator’s mental health.” This interpretation has subsequently been refined and specified through successive judicial decisions.
Requirements established by case law
The Supreme Court has established three fundamental requirements for psychological abuse to be considered a valid cause for disinheritance:
Active or repeated attitude of contempt: There must be active conduct by the legitimary implying disdain, deliberate abandonment, or harmful attitudes toward the testator. Mere passivity or distancing is not sufficient.
Real and demonstrable psychological or moral harm: It is essential to prove that the legitimary’s conduct has effectively caused tangible psychological harm to the testator. The testator’s mere subjective feeling is not enough.
Exclusive imputability to the legitimary: The harmful conduct must be solely attributable to the disinherited person. If the distancing is bidirectional or originates in external circumstances, such as marital separations or complex family conflicts, this requirement is not met.
Analysis of Supreme Court Judgment 419/2022
Supreme Court Judgment 419/2022, of 24 May, constitutes a fundamental jurisprudential milestone that clearly delineates the contours of psychological abuse as a cause of disinheritance. In this decision, the High Court analyzes a case in which a grandmother had disinherited two granddaughters alleging lack of family relationship and emotional abandonment.
The Supreme Court established in this judgment that “a continued lack of relationship imputable to the disinherited party, weighing the circumstances of the case, could be assessed as causing psychological harm,” but emphasized that “the application of the current system does not allow the creation through interpretation of a new autonomous cause of disinheritance based exclusively on indifference and lack of family relationship.”
This judgment is particularly relevant because it establishes that not every family estrangement constitutes psychological abuse. The Court analyzed that the lack of relationship had originated after complex family conflicts in which the testatrix herself had contributed to the distancing, having legally evicted the granddaughters from the family home after the parents’ separation.
Procedural and Formal Requirements of Disinheritance
Obligation to include disinheritance in a will (Art. 849)
Article 849 of the Civil Code clearly provides that “disinheritance may only be done in a will, stating therein the legal cause on which it is based.” This formal requirement admits no exceptions and entails several fundamental practical implications.
Exclusivity of the will as the instrument: No expression of disinheriting intent executed in a document other than a will is valid, whether by public deed, private document, or oral declaration. Disinheritance must necessarily appear in the will. … Clear statement of the cause: It is not enough to state the will to disinherit; it is essential to specify the legal cause on which the decision is based. The reference may be made by citing the corresponding article of the Civil Code or by describing the conduct that justifies disinheritance.
Precise identification of the disinherited person: The will must unequivocally identify the person disinherited, using data that leave no doubt as to identity.
Burden of proof under Article 850 of the Civil Code
Article 850 of the Civil Code regulates a fundamental procedural aspect: “the proof of the truth of the cause of disinheritance shall correspond to the testator’s heirs if the disinherited person denies it.” This allocation of the burden of proof presents specific characteristics that are crucial to understand.
Reversal of the burden of proof: Unlike what usually occurs in civil proceedings, where the party alleging a fact must prove it, in matters of disinheritance the burden does not fall on the party invoking disinheritance (the now-deceased testator), but on those who benefit from it.
Relevant procedural moment: The burden of proof is triggered only when the disinherited party judicially contests the disinheritance by denying the truth of the cause invoked. While there is no challenge, the disinheritance produces all its effects.
Scope of proof: The heirs benefiting from disinheritance must demonstrate not only that the facts alleged as the cause occurred, but also that these facts are indeed subsumable within one of the legal causes of disinheritance.
Challenge procedure by the disinherited party
When a legitimary considers they have been unjustly disinherited, they may initiate a judicial challenge following the general rules of civil procedure with certain specialties.
Time limit for the challenge: Case law has established that the time limit to challenge disinheritance is four years, applying by analogy Article 1301 of the Civil Code. This period is calculated from the opening of the succession and the moment when the content of the will can be known.
Standing: Only the disinherited person has standing to challenge their own disinheritance. The other legitimaries or interested third parties cannot bring this type of action.
Effects of a successful challenge: If the challenge succeeds, the disinheritance clause is annulled and the disinherited person recovers the right to the legitime, while the other testamentary provisions remain valid to the extent they are not incompatible.
Practical Cases and Recent Case Law on Disinheritance
Supreme Court Judgment 865/2025: Family estrangement vs psychological abuse
Supreme Court Judgment 865/2025, of 2 June, represents the most recent and clarifying case law on the limits of psychological abuse as a cause of disinheritance. This ruling analyzes a paradigmatic case in which family estrangement occurs in the context of a contentious marital separation.
Relevant facts of the case: A father disinherited his three adopted children in 2008, just three years after his marital separation in 2005. Two of the children were minors at the time of separation (15 and 16 years old), while the eldest was 22 years old.
Position of the Provincial Court: The Provincial Court of Valencia annulled the disinheritance by considering that the estrangement was not exclusively imputable to the children. It particularly noted that the father had not actively fostered the relationship after the separation, even failing to mention his children in his medical history.
Supreme Court confirmation: The High Court confirmed the annulment of the disinheritance, establishing that continued psychological abuse had not been proven. The judgment emphasizes that a period of three years from the marital separation cannot in itself constitute psychological abuse justifying disinheritance.
Criteria to distinguish justified emotional abandonment
Recent case law has developed specific criteria to distinguish when family estrangement may be considered emotional abandonment that constitutes psychological abuse:
Temporal duration of estrangement: There is no fixed period, but case law assesses whether the estrangement is prolonged and sustained over time. Short or intermittent periods are usually insufficient.
Context of estrangement: It is analyzed whether the distancing occurs under special circumstances of vulnerability of the testator, such as illness, advanced age, or situations of particular need for family support. … Active vs passive behavior: A distinction is made between active conduct of rejection or contempt and mere passivity or lack of interest. Only the former may constitute psychological abuse.
Attempts at reconciliation: Case law assesses whether the testator made genuine efforts to reestablish the relationship or, on the contrary, contributed to maintaining or exacerbating the estrangement.
How to Properly Draft a Disinheritance Clause in the Will?
Essential elements it must contain
Drafting a disinheritance clause requires legal precision and clarity of expression to avoid future challenges. The indispensable elements are as follows:
Unequivocal identification of the disinherited person: The full name, national ID (DNI), and, as applicable, the family relationship to the testator must be included to avoid any confusion about the identity of the person disinherited.
Express mention of the disinheriting will: It is not sufficient to omit the legitimary in the testamentary provisions; it is necessary to expressly declare that the legitimary is disinherited.
Specification of the legal cause: The specific cause under the Civil Code must be cited or the facts that justify disinheritance must be described in detail, so that the subsumption within one of the legal causes is clear.
Sufficient factual narrative: Although not mandatory, it is advisable to include a description of the specific facts that justify disinheritance, thereby facilitating the subsequent evidentiary work.
Common errors that invalidate disinheritance
Notarial and judicial practice reveals frequent errors that can result in the nullity of disinheritance:
Vagueness of the cause: Generic expressions such as “for bad behavior” or “for lack of affection” without further precision are insufficient and may lead to annulment.
Reference to non-legal causes: Citing reasons not contemplated in Articles 852 to 855 of the Civil Code, even if morally reproachable, invalidates the disinheritance.
Partial disinheritance: The Civil Code does not admit partial disinheritances; it must be total with respect to the legitime or it is invalid.
Temporal conditioning: It is not possible to establish disinheritances that are temporary or conditioned upon future behavior.
Legal Consequences and Effects of a Valid Disinheritance
Loss of the right to the legitime
When disinheritance is valid and has not been successfully challenged, the disinherited person completely loses the right to the legitime. This loss entails several important practical consequences that go beyond the purely economic aspect.
Total exclusion from the legitime: The disinherited person has no right to receive any amount from the legitimary portion, regardless of the value of the hereditary estate.
Preservation of other succession rights: Disinheritance does not affect the right to receive specific legacies or to benefit from non-legitimary testamentary provisions, unless the testator has expressly provided otherwise.
Impossibility of subsequent claim: Once the disinheritance becomes final, the disinherited person cannot subsequently claim any amount for the legitime, even if family circumstances change.
Rights of the disinherited person’s descendants
One of the most important features of the Spanish succession system is that disinheritance of a person does not prejudice the succession rights of that person’s descendants with respect to the testator.
Right of representation: The children of the disinherited person take his or her place in the succession by right of representation, preserving in full the right to the legitime that would have corresponded to their ascendant.
Full transmission of rights: The descendants of the disinherited person suffer no reduction in their legitimary rights, receiving exactly the same portion that would have corresponded to their ascendant.
Independence from the cause of disinheritance: The descendants maintain their rights even when the cause of disinheritance is especially serious, such as crimes against the testator.
Frequently Asked Questions about Disinheritance in Spain
Can a child be disinherited for not visiting for years?
The mere lack of visits or contact does not automatically constitute a cause for disinheritance. Case law requires proof of effective psychological abuse, with real harm to the testator and active conduct of rejection by the child. The estrangement must be exclusively imputable to the disinherited party and not the result of complex family circumstances.
What happens if someone is disinherited and subsequently reconciliation occurs? … Subsequent reconciliation nullifies the effects of disinheritance, especially if it implies the reestablishment of a significant relationship between the testator and the disinherited person. In such cases, it is advisable to execute a new will expressly revoking the prior disinheritance.
Can a child be partially disinherited?
No, Spanish law does not admit partial disinheritance. Disinheritance must be total with respect to the legitime or it lacks validity. However, the testator may freely dispose of the non-legitimary portion of the estate.
Is it necessary to prove the cause of disinheritance at the time of making the will?
It is not necessary to provide proof at the time of executing the will, but it is essential that sufficient evidentiary elements exist in the event the disinheritance is later challenged. The burden of proof will fall on the heirs who benefit.
Can grandchildren inherit if the child is disinherited?
Yes, grandchildren fully retain the right to inherit by representation of their disinherited parent. Disinheritance of a legitimary does not prejudice the succession rights of his or her descendants with respect to the original testator.
Disinheritance is an exceptional legal tool that must be used with extreme caution and always with specialized legal advice. The jurisprudential evolution of recent years has significantly clarified the requirements for validity, especially in cases of psychological abuse, but it has also highlighted the complexity of proving these situations in court.
For families facing serious conflict, it is essential to understand that disinheritance should not be the first option, but the last resort when all avenues for resolving family conflict have been exhausted. Family mediation and psychological counseling may be more constructive alternatives that preserve both family bonds and the succession rights of all involved.
Next article Block II. Article III.