Incapacity to inherit- what does it mean in a Spanish Will?

June 23, 2021
Antonio Guillen


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If you own property in Spain or have inherited property in Spain then you may have seen how a Spanish Will looks like. It is very different from a UK will and it uses terminology that would be rarely seen in a UK testament. For instance, it is quite normal to appoint one or more beneficiaries in the Will and then appoint several substitutes to cover several scenarios such as one of them dying before the testator, dying at the same time as the testator, relinquishing the estate and, the one we are covering in this article, incapacity to inherit. But what does the latter mean?

Contrary to what many people would think, the said words do not mean “lack of mental capacity”.  They refer to a very specific scenario contemplated in article 756 of the Spanish Civil Code which refers to situations in which a beneficiary’s behavior, usually with a criminal or offensive element, makes him or her unfit for inheriting from the testator.

Article 756 (free translation)The following are incapacitated to inherit due lack of dignity:

The parents who abandon, force to prostitute or corrupt their children.

  1. Those who were sentenced in Court for having attempted against the life of the testator, his/her spouse, descendants, or ascendants. If the offender was a forced beneficiary, he would then lose his right to the forced share.
  2. Those who have falsely accused the testator of a criminal offense that carries a custodial sentence or major custody sentence
  3. The beneficiary of legal age who, being aware of the violent death of the testator, would not have reported it within a month to the Authorities when they were not aware of it. This duty will not apply when, under the law, there is no obligation to accuse.
  4. Those who with threats, fraud or violence forces the testator to grant a Will or change it.
  5. Those who through similar ways stopped someone from making a Will or revoke the one already made or replace hid or alter an existing one.
  6. In the event of a person with disabilities, those with a right to the estate who did not assist the person with a disability in the terms of articles 142 and 146 of the Civil Code. 

It is therefore evident that the words “incapacity to inherit” refer to a very different scenario. Having said this, facing a Spanish Will where one of the beneficiaries lacks capacity is an entirely different problem that can affect the timescales of the administration of the Spanish estate and that, due to its complications, will be covered in a separate article.