Acceptance and disclaimer (Spain)

Another important stage in the Spanish inheritance process is the acceptance and disclaimer (rejection, renunciation, repudiation) of the inheritance by the heir or heirs.

Acceptance

Express acceptance is self-explanatory and is often formalised in a deed executed before the notary, called “escritura de aceptación de herencia“.

In each case, the law deems that these are acts that denote a clear and precise intention to accept the inheritance.

Rejection

In the case of disclaimer or rejection of the inheritance, this must be expressly confirmed in the presence of a notary or to a judge.

By disclaiming an inheritance, the heir loses entitlement to the estate and any other heirs gain a so-called right of accretion, whereby they acquire the share of the disclaiming heir.

But why would someone want to disclaim an inheritance?

Logic dictates that there is a financial benefit for an heir to accept so why renounce an inheritance?

Because, under Spanish law, when an heir accepts an inheritance outright (aceptación pura y simple), they accept not only the estate assets but also any liabilities of the estate. Technically, these could outweigh the estate assets and they could have to pay for these out of their own pocket.

A solution comes in the form of a mechanism called “aceptación a beneficio del inventario“. This is where the potential heir accepts the inheritance only up to the value of the net assets. In other words, the heir will not have unlimited liability for the estate liabilities and the deceased’s estate will be kept separate from their own personal assets.

Incidentally, the “inventario” is, as the name suggests, an inventory of the estate assets and liabilities, which is drawn up to help the heir or heirs decide (derecho de deliberar) whether and how to accept the inheritance.

Final comments

The decision on whether to accept or reject an inheritance is by no means straightforward. It requires an understanding of the potential benefits and liabilities of both scenarios and should be undertaken with proper legal advice.

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