I was really surprised the other day, when I saw a television report, which narrated the possible motivations for the crime of the Assumpta girl, which occurred a few days ago in Santiago de Compostela, a person who was asked as an expert He did not seem to be very clear about the difference between unworthiness to succeed and disinheritance, mixing both concepts.
As usual, I am going to focus the question on the field of Catalan law, at least as regards the detail of its regulation, because the concept will be very similar, in any Spanish legislation.
THE REQUIREMENTS TO BE AN HEIR
It is usually affirmed in civil law manuals that for a person, upon the death of another, to be able to succeed them (to be their heir in colloquial terms), three requirements are required:
a) the existence of a succession title, that is to say that it is called to the inheritance of another by testament, agreement or by law;
b) that the deceased survives, since it is difficult for a person to become the heir of another if he died before him;
and c) thirdly, that it has the capacity to happen.
THE INDIGNITY
Inheritance unworthiness moves within the scope of this third requirement, which is the capacity to succeed and which can be defined as the legal aptitude of a person to be the heir of another.
This capacity is held by all persons, born or conceived, at the time of the opening of the succession, except those who are affected by a cause of unworthiness. That is to say, that despite the fact that a person may be the heir of another by law, agreement or testament, if this person is affected by a cause of unworthiness, they will not be able to acquire the assets that would correspond to them by virtue of that testament, agreement or declaration. of heirs. The causes of succession unworthiness are provided for in article 421-3 of the Civil Code of Catalonia, being specified in having been convicted by a final sentence handed down in a criminal trial for certain crimes against the deceased or people especially related to him (the most striking thing would be that a person cannot be the heir of the one who has murdered or if he has murdered his spouse, ascendants or descendants); the parents who have been suspended or deprived of the power with respect to the child causing the succession; having maliciously induced the deceased to grant, revoke or modify a will; or having destroyed, hidden or altered the will or other provision due to the death of the deceased.
Unworthiness operates both in the realm of testate succession and intestate succession; it is automatic, although it can be saved if the deceased, despite being aware of it, forgives the future heir; it produces the ineffectiveness of the dispositions in favor of the unworthy person, which will go to whom it corresponds by law or by virtue of the succession title; and it must be alleged by those people who would benefit in the event of a declaration of unworthiness.
THE DISINHERITANCE
Disinheritance has certain similarities with indignity, but in no way can it be confused with it. Disinheritance operates only in the field of succession when there is a will or agreement, and by virtue of it, a person can deprive the legitimate, those who by law are entitled to it, if any of the legal causes concur, some less serious than those of indignity. The causes of disinheritance are provided for in article 451-17 of the Civil Code of Catalonia, being, in addition to those of indignity; denial of maintenance to the testator or serious mistreatment of the testator, his spouse or cohabitant in a stable relationship, or the ascendants or descendants of the testator; the suspension or deprivation of the power that corresponded to the legitimate parent over the deceased child or that which corresponded to the legitimate child over a grandson of the deceased, in both cases due to causes attributable to the person suspended or deprived of the power; the manifest and continued absence of a family relationship between the deceased and the legitimary, if it is for a cause exclusively attributable to the legitimary.
Therefore, as differences between disinheritance and unworthiness, we have that the first operates only in the field of testate succession or by agreement; It is not automatic, since it must be reflected in a will, codicil or succession agreement; It only affects certain people, those who have the right to legitimate; produces the deprivation of the legitimate or legal minimum to receive, which will go to the persons provided for by law, normally descendants of the disinherited; and in case of contradiction by the disinherited person, the proof of the existence of the cause of disinheritance corresponds to the heir, so that if it is proven that the cause did not exist, then one has the right to the legitimate one.
A REFLECTION
I want to end by saying that the consultations that we are asked at the Notary about the possible disinheritance of the children, or of one of them, are frequent. In most cases, it is due to anger, which has caused the separation between parents and children, which, although it may constitute a cause of disinheritance, we must be very careful to put it in the will and assess the consequences of it, especially for future relationships that may arise between siblings. To give an example, a few days ago a man came to my office to change his will, and for the new wording we took the one that he had granted a few years before. Well, this gentleman, did not conceive how he could have disinherited one of his children, in the will that he had made before. Therefore, any decision-making in this matter must be very thoughtful.
