Article 848 of the Spanish Civil Code provides that disinheritance “may only take place on one of the grounds expressly stated by law”. For anyone who wants to leave a child out of their estate, that means deciding it is not enough, nor is a bad relationship, nor the feeling that another child deserves more. There has to be a ground from the Code’s own list, it has to be stated in a will with that specific ground, and if the child later disputes it, someone has to be able to prove it before a judge. The three conditions are cumulative. If any of them fails, the child recovers the forced share and the siblings are left with a lawsuit.
What a child is guaranteed by law
Article 807 of the Civil Code lists children and descendants among the forced heirs, and article 808 reserves two thirds of the estate for them. One of those thirds is the strict forced share, divided equally among all the children. The other is the betterment third, which the testator may allocate to whichever children or grandchildren they prefer. The remaining third is freely disposable and may go to anyone, inside or outside the family. Article 813 closes the system by prohibiting the testator from depriving forced heirs of their share “except in the cases expressly determined by law”.
Within that structure, what a parent can do without any ground at all is reduce a child to their portion of the strict forced share. With three children, that child would receive a third of a third, just over eleven per cent of the estate, and everything else would go wherever the testator directs. Many of the enquiries that reach the firm with the word “disinherit” end in this solution, which requires no ground, cannot be challenged on that basis and obliges nobody to prove anything. Disinheritance in the proper sense means depriving the child of that portion too, and for that you have to go through articles 848 to 857. I have written separately about how this looks from the child’s side.
Leaving the child out of the will altogether is not disinheritance either. That is pretermission, governed by article 814, and the omitted child claims the forced share without anyone having to argue about grounds.
The grounds the Civil Code accepts
Article 853 sets out two specific grounds for disinheriting children and descendants. The first is having refused, without legitimate reason, maintenance to the parent or ascendant who disinherits them. The second is having physically mistreated them or gravely insulted them verbally.
Refusal of maintenance refers to maintenance between relatives under articles 142 and following, which covers food, housing, clothing and medical care. For it to operate as a ground, the parent must have been in need, must have asked for it, and the child must have refused while able to pay. If the parent never claimed it, or the child had no means, the ground does not hold.
Physical mistreatment was for a long time exactly that. Grave verbal insult requires real gravity, and a heated family argument does not reach it. A criminal conviction for threats or coercion is the strongest possible evidence of the ground.
To those two grounds, by reference in article 852, are added the grounds of unworthiness in article 756, numbers 1, 2, 3, 5 and 6. In the wording currently in force, after Law 8/2021 of 2 June reforming civil and procedural legislation to support persons with disabilities, they are as follows. Having been convicted by final judgment of an attempt on the life of the testator, their spouse or partner, or their ascendants or descendants, or sentenced to a serious penalty for injuries or for habitual physical or psychological violence within the family. Having been convicted of offences against liberty, moral integrity or sexual freedom against those same persons, or sentenced to a serious penalty for an offence against family rights and duties, or deprived of parental authority by final ruling. Having accused the testator of an offence carrying a serious penalty and been convicted of false accusation. Having forced the testator, by threat, fraud or violence, to make or change a will. And having prevented them by those same means from making or revoking a will, or having replaced, concealed or altered a later one.
Unworthiness and disinheritance do not work the same way even though they share grounds. Disinheritance requires a will. Unworthiness operates by law, without the testator having to say anything, but it needs an interested party to assert it before the court, and article 762 gives five years to do so from the moment the unworthy heir takes possession of the estate. Article 757 adds that unworthiness has no effect if the testator knew of the ground when making the will or, learning of it afterwards, forgave it in a public document. For persons with disabilities there is one further ground, number 7 of article 756, covering anyone who failed to provide them due care, but it works only as unworthiness and is not among those article 852 allows to be invoked in a will.
Psychological abuse and abandonment according to the Supreme Court
The ground most used today is the second in article 853, and that is because the Supreme Court widened its scope. In its judgment of 3 June 2014 it held that psychological abuse, understood as conduct that impairs or damages the testator’s mental health, falls within physical mistreatment. In its judgment of 30 January 2015 it applied that criterion to the emotional abandonment of a mother by her children during the last years of her life.
That criterion has not turned every estrangement into a ground for disinheritance. The Supreme Court itself, in its judgment of 24 May 2022, clarified that a continued absence of relationship attributable to the child may be regarded as causing psychological harm and therefore mistreatment, but it requires proof both that the breakdown is attributable to the child and that it caused that harm to the parent. A child who stopped calling because the parent threw them out, or because the relationship broke down through the fault of both, does not fit. One who turned their back on a sick and dependent parent, ignored their calls and did not even appear at the hospital may fit, provided those facts are proved.
How it is done, the will and the clause
Article 849 allows disinheritance only in a will and with a statement of the legal ground on which it rests. The usual route is an open will before a notary. The notary records what the testator declares but does not check that it is true or assess whether the facts fit a ground. That part falls to whoever drafts the clause.
The clause must identify the child and the ground, and it must describe specific facts, with dates and recognisable episodes, not generic labels. A will saying “I disinherit my son for mistreatment” is formally valid, but it leaves the other heirs without an account to prove when the child denies it. One that says why, when and what the mistreatment consisted of, referring to the police report or the medical report that supports it, does half the work of the lawsuit.
Disinheritance is all or nothing as regards the forced share. The Code does not contemplate partial disinheritance, and if the aim is for the child to receive less than their siblings, the route is to leave them only the strict forced share and distribute the betterment and free thirds among the others.
What happens when the child challenges it
Article 850 places the burden of proving the ground on the testator’s heirs “if the disinherited person denies it”. The child need only deny. It is the siblings, or whoever has been named heir, who must show in ordinary civil proceedings before the Court of First Instance that the parent needed maintenance and the child refused it, or that there was mistreatment and what it consisted of. The testator is no longer there to tell it, and their will does not count as evidence of the facts it recites.
If the ground is not proved, is not stated in the will or is not one of the legal ones, article 851 annuls the appointment of heir insofar as it prejudices the disinherited child. The child recovers the strict forced share. Legacies, betterments and the other dispositions stand insofar as they do not prejudice it, so the will does not fall entirely, but the distribution changes and the other children return what is due.
The Civil Code sets no specific time limit for challenging a disinheritance. The general limitation periods apply, and the actual length depends on how the claim is framed, a point on which the courts are not settled. In practical terms the child has years, not weeks, and time usually works against the heirs, because witnesses disappear and documents get lost.
The case proceeds as ordinary civil litigation, with a lawyer and court agent for each side and, in almost every case, psychological or medical expert witnesses. At first instance it usually takes more than a year, and the appeal to the Provincial Court adds another stretch. Costs are awarded against the losing party under the general rule of the Civil Procedure Act, so a disinheritance that does not hold ends up costing the siblings their share and everyone’s fees. The firm acts at both stages, drafting the clause and organising the evidence during the testator’s lifetime, and defending or challenging the disinheritance once the succession is open, within our civil law practice.
The evidence is built while the testator is alive
After death nothing can be manufactured that was not left ready. If there was violence, the police report and, where it exists, the conviction settle the matter at the root, because they also turn the case into a ground of unworthiness under article 756. If what happened was a refusal of maintenance, it must be on record that it was requested, and the way to have it on record is to have claimed it in writing or through a maintenance claim, even if no judgment was ever reached.
For psychological abuse and abandonment, what sustains a lawsuit is contemporaneous medical and psychological reports reflecting the parent’s condition and its cause, witnesses who saw the situation, such as neighbours, carers or healthcare staff, and the messages or letters showing the child’s response or silence. The testator may also execute a notarial deed of declarations describing the facts. It serves to fix their version with a certain date, but it only proves that they said it, not that it was true, and on its own it does not win a case.
What someone considering disinheritance can do today is delete nothing, keep reports and messages in their original form, note who was present at each episode, and sign no document of forgiveness or reconciliation without understanding its reach.
Grandchildren, gifts and reconciliation
Article 857 provides that the children or descendants of the disinherited person take their place and retain the rights of forced heirs as regards the forced share. If you disinherit a child who has children, the strict forced share they lose passes to your grandchildren, and there is no way around it unless there is a separate ground against each of them. The testator may, however, direct the betterment third and the free third wherever they wish.
Gifts made to the child during the testator’s lifetime are not undone by disinheritance. What the law allows is revocation of the gift for ingratitude under article 648, where the recipient commits an offence against the person, honour or property of the donor, accuses them of an offence or improperly refuses them maintenance, and article 652 gives one year to do so from when the donor learned of the ground. Apart from that, those gifts are taken into account when calculating the forced share of the other children and, if they prejudice it, may be reduced.
Article 856 establishes that subsequent reconciliation between offender and offended deprives the testator of the right to disinherit and renders any disinheritance already made ineffective. The reconciliation must be real and mutual, and proving it falls to the child who invokes it. If it happens, the prudent course is to execute a new will removing the clause, because keeping it only guarantees a lawsuit over whether the reconciliation existed. If it does not happen, any ambiguous gesture, a visit, a gift, a phone call, may later be relied on by the child, and the testator should be aware of that.
Catalonia, Aragon, Navarre, Galicia, the Basque Country and the Balearic Islands
All of the above is the Civil Code, which applies to anyone with common civil residence status. Anyone with Galician, Catalan, Aragonese, Navarrese, Basque or Balearic civil residence status is governed by their own regional law, under articles 9.8 and 14 of the Civil Code, and the differences are substantial.
| Territory | Legislation | Children’s forced share | Can a child be left out without a ground? |
|---|---|---|---|
| Common law | Spanish Civil Code | Two thirds (one third strict share and one third betterment) | No |
| Galicia | Law 2/2006 on Galician civil law | One quarter | Not unilaterally, but yes through an apartación agreed with the child |
| Catalonia | Book IV of the Civil Code of Catalonia, Law 10/2008 | One quarter | No, but absence of family relationship attributable to the child is a ground for disinheritance |
| Aragon | Aragonese Regional Civil Code | One half, collective for all descendants | Yes, the testator distributes it among descendants as they see fit |
| Basque Country | Law 5/2015 on Basque Civil Law | One third, collective | Yes, through apartamiento |
| Navarre | Fuero Nuevo of Navarre | Formal only | Yes |
For a client in A Coruña with Galician civil residence status, what matters is that the children’s forced share is one quarter of the estate, under article 243 of Law 2/2006, and that it is configured as a monetary claim rather than a share of the assets. The grounds for disinheritance are in article 263 of that law, which lists refusal of maintenance, physical mistreatment and grave insult and refers to the grounds of unworthiness in article 756 of the Civil Code, and article 262 likewise requires that it be done in a will stating the ground. Galicia also offers the apartación, a succession agreement under which the child receives assets during the parent’s lifetime and waives the forced share, which avoids the problem without any ground and without litigation, provided the child agrees. I explain it in the article on apartación.
In Catalonia, article 451-17 of the Civil Code of Catalonia includes as a ground the “manifest and continued absence of family relationship between the deceased and the forced heir” where it is due to a cause exclusively attributable to the latter, which is precisely what the Spanish Civil Code does not accept on its own. In Aragon the forced share is collective, half the estate for the descendants as a group, and the testator may distribute it as they prefer and leave one child with nothing without alleging any ground. In the Basque Country the collective forced share is one third and Law 5/2015 allows any descendant to be set aside without stating a reason. In Navarre freedom of testation is practically total and the forced share is a formal requirement satisfied by merely mentioning the child. In the Balearic Islands the children’s forced share is one third, or one half if there are more than four, and as to grounds the Compilation refers back to the Civil Code.
What is at stake and what we do
If you draft the clause yourself, or leave it as a generic sentence before the notary, the most likely outcome is that the disinherited child recovers the forced share in a lawsuit paid for by their siblings, and in the worst case that the whole estate is frozen for years. If you are the disinherited child, the risk is the reverse, accepting as valid a disinheritance that does not hold. The firm drafts the clause to fit the ground that actually exists, organises with the testator the evidence that will sustain it, and conducts the challenge, in either direction, once the succession is open. You can call +34 677 841 007 or write through the contact page. Have to hand the will or the draft if one exists, the list of children and grandchildren, the documents reflecting the facts, such as police reports, judgments, medical reports or messages, and where the testator has lived over the last ten years, because that determines which law applies.
Frequently asked questions
If I disinherit my child, do my grandchildren inherit in their place?
Yes. Article 857 of the Spanish Civil Code provides that the children or descendants of the disinherited person take their place and retain the forced share. The portion of the strict forced share the child loses passes to their own children, and the only way to avoid that would be to disinherit them too on a ground of their own. The betterment third and the free third you may direct wherever you wish.
Can I disinherit a child for not speaking to me or visiting me for years?
Not on that fact alone. Since 2014 the Supreme Court has accepted that psychological abuse and abandonment amount to mistreatment, but it requires proof that the breakdown is attributable to the child and that it caused real harm to the parent. A mutual estrangement, or one provoked by the testator, does not qualify. In Catalonia, by contrast, a manifest and continued absence of family relationship attributable to the child is a ground for disinheritance in itself.
What happens if the will does not state the ground or the ground is not on the Civil Code’s list?
The disinheritance is invalid. Under article 851, the child recovers the strict forced share and the other heirs return what is due. Legacies, betterments and the other dispositions stand insofar as they do not prejudice that share, so the will does not fall entirely, but the distribution changes.
Is going to the notary enough, or do I need a lawyer to disinherit a child?
It depends on what you want to achieve. If your aim is for that child to receive as little as possible, with no legal ground existing, you do not need to disinherit; leaving them the strict forced share is enough, and any notary will do that with no risk of litigation. If a genuine ground exists and there is evidence, the clause has to be drafted with the specific facts and that evidence prepared beforehand, and there the notary will not help you, because their role is to record what you declare, not to build the case. If the ground is doubtful or there is no evidence, the honest answer is not to disinherit; all you achieve is a lawsuit your other children will probably lose.