The exclusion of children from the testator’s inheritance. (An updated view of disinheritance in the Civil Code)

Abstract

Disinheritance has traditionally been treated as a type of penalty imposed on forced heirs, who, subject to any of the causes established by the Civil Code, are deprived by the testator of the legal portion of inheritance to which they are entitled.

As in so many other inheritance law matters, the fact that the Civil Code has remained virtually unchanged with respect to its original wording makes it necessary to, almost one hundred and fifty years after it came into force, interpret or reinterpret the rules governing disinheritance, and answer some unresolved questions including the matter of so-called partial disinheritance, conditional disinheritance, the destination of the estate not awarded to the disinherited party, and all the problems envisaged in Article 857 resulting from the identification of the descendants of the disinherited party as the beneficiaries of the unclaimed estate left by the latter, as well as the recent acceptance, based on case law, of psychological abuse as new grounds for disinheritance, including the acceptance of physical abuse itself, which is expressly enshrined in the Code.