Legal Capacity
to Inherit

Legal Capacity to inherit

To have the legal capacity to inherit, the beneficiary must be alive or at least have been conceived.

As the legal body of a Trust does not exist in Spain, there is no other possibility in Spanish law to designate a beneficiary who was not alive at the time of death other than by ordering a so called a «Sustitución Fideicomisaria». This consists of designating an heir, who has the obligation to transfer the assets to a second beneficiary at the time ordered by the testator, or at the time of his or her own death.

There is a limit in the numbers of successive beneficiaries: two generations from the testator or without limits if all the succesive beneficiaries are alive at the time of death.

  • Apart from the general Legal Capacity to inherit, there are some facts and actions that disqualify a person from inheriting from somebody.These are referred to, under Spanish law, as «causas de incapacidad». These fall into two categories:

    I.- Certain relationships that link the testator with him or her.

    II.-Unacceptable behaviour of the beneficiary towards the deceased, which are called «Causas de Indignidad»

    From the first group:

    The testator can’t dispose of his or her assets to the benefit of:

  • The priest to whom you make your final confession (or their relatives up to the fourth grade, or his church or institute)
  • His legal guardian if he is incapacitated but is still capable of making his own will
  • except if the legal guardian is a spouse, an ascendant, descendant, brother or sister of the testator

  • The Notary who will authorise the last will (or his or her partner or their relatives up to the fourth grade)
  • From the second group, «Causas de Indignidad»:

    a) Those who were excluded from the «patria potestad» over their children, or those who have the legal guardianship over a disabled person removed because of some failing, in both cases regarding the inheritance of the children or disabled person.

    Also those relatives who, not having guardianship, did not fulfil their obligations regarding the disabled person, under the Law ( arts. 142 y 143 C.C.)

    b) Those who had committed some crime against the deceased his spouse or unmarried partner, ascendants or children. ( murder, personal injures, habitual violence in the family ( physical or psychological), freedom, moral integrity, sexual liberty if the person had been convicted of them in a criminal court.

    c) Those who were convicted for not complying with family duties regarding the inheritance of the victim.

    d) Those who prevented the deceased from making a will, or destroying an existing will or failing to present a will they had kept in their custody, or forcing the testator to make a will or to revoke an existing one. In all cases using threats, fraud or violence.

    There are two more curious cases:

    e) An heir who, knowing of the murder of the testator failed to report it.

    d) Someone who accused the testator of a serious crime, for which they were then convicted of false accusation.

    Those » causas de incapacidad» imply that the person who would benefit from the inheritance instead of the above, must claim for the «Cause of Incapacidad» within five years from the date of death ( or the conviction).

    .-The «causas de indignidad» affect the beneficiary regardless of the succession being testate or intestate.

    .-If the victim makes a will knowing the above and names as a beneficiary someone who may be disqualified, the cause will be deemed excused

    .-If the beneficiary affected by «indignidad» is a child of the deceased and he or she also had children, their children will keep their right to the reserved share.

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