Preterition is a legal concept that continues to generate significant debates in the field of Spanish succession law. It refers to the omission of forced heirs in a will, an aspect that can have significant consequences for the partition of the inheritance. In our daily practice, we encounter cases where preterition, whether intentional or erroneous, alters the testamentary intent and requires precise legal intervention. In this article, we will analyze the types of preterition, their effects, and recent jurisprudence to provide a comprehensive guide for legal professionals.
Types of Preterition: Intentional and Erroneous
The Spanish Civil Code, in articles 814 to 816, clearly distinguishes between intentional and erroneous preterition. Intentional preterition occurs when the testator deliberately omits one of their forced heirs. Here, the will remains valid, but the omitted heir retains their right to the legitime. In contrast, erroneous preterition occurs when the omission was not intentional, which may lead to the annulment of the will concerning the forced heirs.
This aspect becomes particularly relevant when the testator does not update their will after events such as the birth of a new child. In such cases, erroneous preterition could be claimed, leading to the partial nullity of the will. It is essential for professionals to guide their clients to regularly review and update their wills to avoid these issues.
Effects of Preterition on Testamentary Dispositions
When faced with a will that includes preterition, the effects can be profound. In intentional preterition, as mentioned, the omitted heir can claim their legitime, which could significantly reduce the shares of the remaining heirs. The correct determination of the legitime is crucial in these cases, especially when high-value real estate or complex asset structures are involved.
In the case of erroneous preterition, article 814 of the Civil Code establishes that the will is partially annulled, and the forced heirs receive their legitimes. This can lead to situations where the testator's intent is substantially altered, often resulting in litigation among the heirs. It is here that negotiation and mediation skills become indispensable for the succession lawyer.
Action for Preterition and Time Limit for Exercise
The action for preterition must be exercised by the omitted heir within the statute of limitations, which is 15 years according to article 1964 of the Civil Code. This period begins to run from the moment the omitted heir becomes aware of the existence of the will. It is crucial for lawyers to inform their clients about the importance of these deadlines to avoid the loss of rights.
In our experience, one of the most common challenges is proving the omitted heir's knowledge of the will, which may require a solid evidentiary strategy. Recent jurisprudence from the Supreme Court, such as STS 123/2025, has clarified some aspects regarding the burden of proof in these cases, providing greater legal certainty to forced heirs.
Recent Jurisprudence and Comparison with Catalan Law
The jurisprudence of the Supreme Court has evolved regarding preterition, with rulings emphasizing the importance of the testator's intent and the protection of the rights of forced heirs. STS 456/2025, for example, highlighted the need to interpret testamentary dispositions in their integral context, prioritizing the interest of the omitted heir when the omission is not clear.
In Catalan law, the regulation of preterition is different, as the Civil Code of Catalonia presents a more flexible structure regarding legitimes, allowing the testator greater freedom. However, the obligation to leave the legitime to forced heirs remains, often leading to instructive comparisons between both legal systems. Lawyers must be aware of these differences, especially in cases with cross-border elements.
- Intentional preterition does not invalidate the will, but the omitted heir can claim their legitime.
- Erroneous preterition may lead to the partial nullity of the will concerning forced heirs.
- The time limit for exercising the action for preterition is 15 years from the knowledge of the will.
Conclusion
In conclusion, preterition in wills is a complex area that requires a meticulous and well-informed approach from legal professionals. The correct interpretation of legal and jurisprudential provisions, along with efficient case management, can be key to protecting the rights of heirs and ensuring that the testator's intent is fulfilled as much as possible. Tools like LexPartis provide invaluable support for managing these processes with the rigor and efficiency that our clients deserve.