Sat. Apr 20th, 2019

Children can not disinherit their parents because they feel abandoned | My rights section

Children can not disinherit their parents because they feel abandoned | My rights section



The will of disinherit Who does not love you is not a legally valid reason to exclude from the distribution of your assets to those relatives who, by law, have a legitimate right to them. In other words, our Civil Code does not take into account the good, bad or non-existent relationship with the family when it comes to pointing out the people who will inevitably succeed in our heritage. The only way to deprive them of this right is by arranging it in the will and taking into account the causes assessed in the Civil Code, called causes of indignity. Among them is the abandonment of children. The norm in force at the time of death said, literally, that parents who "abandon, prostitute or corrupt their children" may be disinherited. But can the son for whom his father simply "does not exist" be considered abandoned?

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In this sense, a recent ruling of a court in Alicante (whose full text you can consult here) has declared void the clause included in the testament of a man without descendants who disinherited his father from whom he felt abandoned. In spite of testimonies that assured that when they crossed in the street it was crossed of sidewalk, the court concluded that it had not neglected him economically and, that therefore, there was no legal reason to exclude him of the inheritance.

The emotional abandonment is not synonymous with abandonment to these effects, except in the regulation of the Catalan Civil Code, which incorporated in 2010 a new cause of disinheritance: the lack of family relationship between the deceased (the deceased) and the legitimary or disinherited "for cause attributable exclusively to the latter." The wording of the Catalan law reflects an undeniable social reality, there are parents who have no relationship with their children and vice versa.

For its part, the Civil Code (applicable in all territories that do not have a private right of its own), establishes in Article 756 the causes of disinheritance due to indignity or ingratitude. A reform of 2015 included as a reason to disinherit the parents that they have been deprived by a firm resolution of parental authority and cases of gender violence. Literally, the convicted person is excluded for "physical or psychological violence in the family to the deceased, his spouse, person to whom he is united by analogous relationship of affectivity or one of his descendants or ascendants". In addition, the child's disability was expressly introduced as a relevant factor in assessing the severity of inattention towards him.

Restrictive interpretation

As the sentence explains, and according to reiterated doctrine and jurisprudence, the causes of disinheritance must be interpreted restrictively. In this case, it is required that there be clear and serious cases of abandonment, which should be understood as "failure to comply with the duties of assistance and protection, both physical, moral and economic" to the children. In short, it is the breach of the inherent duties of parental authority: to look after the children, to have them in their company, to feed them, to educate them and to provide them with an integral formation.

The court exemplifies those cases of serious and absolute abandonment. Expressly cites a recent ruling of the Supreme Court that declared the inability of a man to succeed his minor child with cerebral palsy who ignored, did not worry about his health, despite repeated hospital admissions, "without visiting or contributing despite know the economic precariousness ". It is a cause that requires, it is stressed, "the absolute break, for the whole life, of the parent-child relationship from the childhood of the child".

On the contrary, clarifies the Audiencia of Alicante, can not be described as abandonment, despite the seriousness of the events, reported in another sentence, "having burned the uniforms of the deceased" or "make it empty in a family party."

Emotional abandonment

It corresponds to the heirs, on the other hand, the obligation to prove the certainty of the cause of disinheritance if it is contested by the disinherited. In this case, both the court, in the first instance, and the Hearing, considered that the abandonment alleged by the deceased was not sufficiently demonstrated. Given the restrictive nature of these causes of disinheritance, it is required that it be "fully accredited", with the requirements of gravity and continuity "jurisprudenial exigibles".

According to the testimonies provided, when the father left, the son was already of legal age. In addition, there was also a total lack of attention in the family because it was shown that he had contacts with his son on some weekends and family parties and even in some period they worked in the same business. Although there were friends of the deceased who maintained that this and his father did not have a normal relationship, that they were not treated, that when they saw themselves in the street the parent crossed paths, and that he had recognized that his father "did not exist "and his willingness to disinherit him, the court concludes that neither neglected him economically nor existed a true abandonment, beyond the emotional, which, says the sentence," is within the field of morality. "

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