Mallorca Insights

Non-acceptance vs. waiver of an inheritance in Spain

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If you are appointed as an heir under Spanish law, regardless of whether by will or by intestate succession, unlike in Germany, the inheritance must be expressly accepted before a notary. As long as this declaration has not been made, the heir cannot access the estate. Due to this legal peculiarity in Spain, the question often arises as to what the difference is if the inheritance is simply not accepted or rejected altogether.

However, there is no direct difference in the legal consequences. However, there are liability risks if the inheritance is not waived. The liability risk here is that the appointed heir is liable for the debts of the deceased, even though he or she may not want to be.

Under Spanish law, the acceptance of inheritance is only valid from the notarized declaration of acceptance and not immediately as in Germany, as long as the heir does not disclaim within the six-week period. Acceptance of the inheritance takes place by signing a deed before a public notary. The legal effect of this declaration goes back to the date of the inheritance, i.e. the date of the testator's death. The waiver is declared at the same time as the acceptance and is also retroactive to the date of the inheritance. Under Spanish law, as under German law, renunciation means that the inheritance is deemed not to have taken place. The appointed heir is not considered an heir and is not liable for any liabilities with his or her private assets. In return, however, he or she also loses any claim to the inheritance.

After the successful waiver, the appointed heir no longer has any obligation to assume the deceased's liabilities. This includes all liabilities, regardless of who the creditor is. This means that neither a private individual nor a state authority (e.g. tax office) or even an institution (such as a care home) can assert a claim against the designated heir. It should be noted, however, that this only applies to nursing homes if they can only assert a claim against the deceased. If a declaration of assumption of costs has been contractually agreed by the descendant appointed as heir, the heir cannot invoke the waiver. The declaration of assumption of costs has been concluded in an individual contract between the nursing home and the child and has not been transferred to the child by way of inheritance. A waiver cannot affect this contractual agreement.

As long as the waiver is not expressly declared, there is a certain risk of liability for the appointed heir, as the acceptance of the inheritance can also be implied. Implied means a tacit or conclusive declaration. Such an acceptance is possible through any act that necessarily presupposes the will to accept, e.g. an application to be named as the heir of a person who has died without a will or an act that only the heir has the right to perform, e.g. actions for the return of estate items or the assertion of claims by the testator.

The inheritance shall also be deemed to have been accepted if the heir gives or assigns his or her right to an uninvolved party, to all co-heirs or to one of them Sold, or if the heir waives it in favor of one or more of his or her co-heirs in return for payment or free of charge.

It is also possible for other heirs or third parties to request the presumed heir to make a declaration of intent in court. In this case, the judge sets a deadline for the presumed heir to provide information about the acceptance or rejection. If the deadline is missed, the inheritance is deemed to have been accepted.

An acceptance or waiver is irrevocable. It can only be contested if there is a defect in the will that renders the declaration null and void or if an unknown will appears.

If an heir does not wish to expose himself to any liability risks, e.g. due to over-indebtedness, the prompt waiver should be declared in any case for the aforementioned reasons, so that this has an effect back to the death of the testator and an implied acceptance cannot be assumed. It should also be checked whether individual contractual liability can be excluded.

Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)

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