It is common to find situations in which after the death of a person, there are children who were not recognized. Especially when the deceased leaves an inheritance, so they want to assert their rights as any descendant. So before the law, these children are direct heirs, and regardless of their family status, they enjoy equal legal protection. In that sense, in this article we will explain whether children born out of wedlock have the right to an inheritance. inheritance in Spain, and what is the process they must follow.
What is affiliation?
The filiation is the link that parents have with their children, and can be of several types:
- By nature: in this case the parents conceive the child naturally.
- By adoption: there is no blood link, but there is a legal link between the child and the parents.
- Matrimonial: this is the case in which filiation occurs when the children are born in marriage.
- Out-of-wedlock: involves children born out of wedlock.
These links can be proven scientifically or legally, through different mechanisms such as DNA tests, adoption documents, among others.
Children born out of wedlock and their rights to inheritance in Spain
Extramarital children, once they have been able to verify their filiation link, do have rights before an inheritance. But to understand how to legalize this link, it is necessary to know the concept of filiation. And to get advice from a lawyer in order to carry out the process in the best way.
Article 807 of the Spanish Civil Code establishes that the first persons entitled to an inheritance in Spain are the forced heirs. Without making any distinction as to sex, age, or type of filiation, so both biological children, as well as adopted children, who were procreated or legalized in and out of wedlock. Therefore, no testator can exclude these children, once the filiation link has been proved.
What should a child born out of wedlock do in the event of an inheritance in Spain?
In the event that a child born out of wedlock decides to begin the process of claiming an inheritance in Spain. This must begin with a process of filiation to determine who is his or her parent. Following this procedure, the judge will issue a ruling that establishes the degree of kinship and filiation of the person. Once this link has been proved, a petition for inheritance can be filed, alleging a preteritionThe claimant is entitled to the rightful share of the claim.
This is why the first recommendation is to go to a lawyer specialized in inheritances, who can advise you in every part of the process. Especially because it is necessary that the lawyer makes the pertinent calls to action, in the case that the inheritance is in the process of partition or that it has already been distributed among the parties recognized in the will.
What happens if the child is not included in the will?
In the case in which a child is not included in the will, either by forgetfulness or intentional omission, Article 814 of the Civil Code applies, which establishes preterition in the procedure. The preterition is the term that refers to the absence of mention of a forced heir in an inheritance in Spain.
In order for such omission to be granted, an application must be made in the name of one or more heirs,
whether children or ascendants and widowed spouse as long as they have not been legally separated.
What is the process for an extramarital child to claim an inheritance?
Article 1050 of the Civil Code provides that "the succession of a child born out of wedlock is governed by the same rules as that of the legitimate deceased. Thus, once the claim for filiation has been proven, and his or her right in the succession has been claimed, the person can become part of what corresponds to him or her.
In such cases, the testator must stop the distribution and make the pertinent revisions to execute the judgment obtained in the filiation process. So the execution depends on the judges, and the DNA or adoption tests, at the same time that local laws must be complied with.
Can stepchildren inherit property in an estate?
There are different conditions that determine whether a child is extramarital or not. Because prior agreements can be established, which change the legal conditions. For example, stepchildren are not considered, in that sense, as extramarital children, and cannot inherit property.
It can also happen that the person marries for the second time, under a union with a separation of property agreement. If this couple establishes that the biological children of that union have no rights to the assets achieved outside of that marriage. These never acquire the condition of legal heirs.
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