Minors and
disabled people

When there are minors or disabled people

When minors or disabled people are going to be involved, there are various possibilities at the time of preparing the succession, and special rules once the succession is opened.

In Spanish law, a minor is under eighteen and a disabled person is one who has been judicially incapacitated because of illness, disease or deficiency which impedes the person to deal with their own affairs.

The parents are the legal guardians of a minor and also of a disabled child who lives with them and will be judicially incapacitated once they become of legal age ( unless the disabled child is married)

If there are no parents or they can not assume guardianship (judicially declared) a legal guardian (tutor) must be appointed by the court.


.-A person can designate in a public deed someone to be appointed as his or her legal guardian ( Tutor) as well as the rules to organise, or administrate, their assets, if he or she thinks they may be judicially incapacitated

.-The parents can designate in their last will someone to be appointed as a tutor if both of them die. The court will appoint the nominee unless it is clear from the given circumstances that it is not in the interests of the minor or disabled person. If the parents nominate different candidates or order different rules for the guardianship, the court will adopt both if compatible, if not, the court will resolve to the sole benefit of the minor or disabled person.

.-A so called “patrimonio protegido” can be ordered.

.-Any person can bequeath assets to a minor nominating the person to administrate them, even if the child’s parents are alive. Also, assets can be constituted or bequeathed to a disabled person’s «patrimonio protegido»

.-If one of their children is disabled, The parents can even destine all the assets to the disabled child, without complying with the reserved share of the siblings, ordering that at the death ( or the recovering of capacity) of the disabled child ( incapacitated), the assets will go to the other forced heirs. The way to do this is what is known as «sustitución fideicomisaria» and, as there is no such entity as a «trust» in Spanish law, this can function in a similar way.

.-For disabled children, there is also the legal right to inhabit for life the house where he or she lived with their parents.

.-There is also the possibility for the parents and other ascendants to make a last will in the name of a minor under fourteen years of age in case the minor dies before that age which is the minimum in Spanish Law to make a will.

.-The same can be done for disabled children, the parents or other ascendants can make a will in the name of a disabled child. This will can order all the estate of the disabled child, not only the assets that are gifted by the parent or ascendant who makes the will. This will may be revoked by the disabled child if he or she recovers health.

.-Lastly, for inheritance tax reasons it is advisable to get the disability (minusvalía) officially assessed and graded before any inheritance is acquired


If a minor or a disabled person is involved in the succession they must be represented by their parents (both of them if under Spanish law) or tutor (legal guardian).

The parents can accept the inheritance or legacy bequeathed to their children without court approval but will need court approval for the rejection of the acquisition. If the rejection of the estate or legacy is not approved, the acceptance must be carried out with “Beneficio de Inventario”

The appointed legal guardian ( tutor) of a minor or a disabled person can accept with “Beneficio de Inventario», but must ask for court approval to accept simply, without “Beneficio de Inventario” or reject the inheritance or legacy bequeathed to the represented minor or disabled person. The acceptance will always be carried out with “Beneficio de Inventario”.

In the sharing out of the estate:

The parents of the minor or disabled person won’t need court approval.

If the minor or disabled person is represented by a tutor (legal guardian), the sharing out will need court approval.

If the tutor or the parents are also involved in the same succession and there is therefore a conflict of interest, the minor or disabled person will be represented by a “«Defensor Judicial especially appointed by the court for the sharing out of the estate, which ordinarily will also need court approval.

If only one of the parents has such a conflict of interest, the minor will be represented by the other parent without the need for any appointment or court approval.

If a contador partidor is appointed in the testament the sharing out won’t need court approval. The contador can, even if there are minors or disabled persons, determine the distribution of the assets according to the will of the testator, thus completing the sharing out of the estate with no further requirement.

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