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How to Disinherit in Puerto Rico

By Christian M. Frank Fas

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What is a disinheritance?

A disinheritance is the act by which a testator deprives a forceful heir from his or her legitimate portion of the estate, for a specific reason outlined in the Puerto Rico Civil Code. It is a resource provided by law to exclude a forceful heir from the estate when the heir has committed specific acts agains the testator.

Only forceful heirs can be disinherited, and they can only be disinherited by drafting a testament.

1. What are the requirements to disinherit an heirThat there is a forceful heir, such as a descendant, or ascendant. Only forceful heirs can be disinherited. The testator cannot disinherit someone who does not inherit to begin with.
2. The heir must have committed a specific action against the testator, and that action must be one of the outlined reasons or causes for disinheritance. Only then can he or she be deprived of their legitimate portion of the estate. (Article 773, 31 L.P.R.A. § 2451)
3. The action, and its cause for disinheritance by law, must be clearly expressed in the testament.
4. The name and identity of the heir must be clearly stated in the testament. (Article 775, 31 L.P.R.A. § 2453).

Exception: If the disinherit forceful heir contest the disinheritance after the testator dies, the remaining heirs have the burden of proof that the cause and action were committed by the disinherited heir.

The Puerto Rico Supreme Court has stated that the cause for disinheritance must be specified in the testament. Contrary to the ordinary rule of liberal testamentary interpretation, that which permits the court to interpret liberally the intention of the testator, and must prevail as his or her last will, in the case of a disinheritance the specificity of the actual exclusion must be clearly stated. A testator can only disinherit through one of the reasons stated by law, and these reasons must be clearly and unequivocally specified, as well as whom is addressed by these. A testator cannot reference another document, even if the document is a public scripture or of public domain.

What are the requirements for a valid disinheritance?

That the cause is specified in the PR Civil Code. If the reason is not in the Code, it will not work.

That the act or reason is true, in other words, that it really happened.

3. That the testator does not draft a will after the act or reason occurred, but did not include the disinheritance. The act must happen first, and then the will must be drafted. Any will drafted after the act or reason, but that does not include the disinheritance, will annul any subsequent disinheritance.

4. That the will containing the disinheritance has not been revoked by a subsequent will, and once drafted, complies with all the legal requirements for a valid will. If the will is insufficient to grant inheritance, it will be insufficient to disinherit, too.

5. Finally, that the testator and the disinherited will have not reconciled after the act occurred. If both reconcile, even if the testator proceeds to draft a will disinheriting the heir, the disinheritance is not valid. (Artículo 781, 31 L.P.R.A. § 2459)

Which are the reasons to disinherit?

All of the reasons for indignity, which are:

1. Abandon, compel to prostitution or falter against the honor of one’s offspring.
2. Sentenced for attempted murder of the testator, his spouse, his children, or his ascendants. This requires a final judgment by court.
3. Accuse in a defamatory manner the testator of committing a felony which carries imprisonment.
4. Fail to inform the authorities of the violent death of the testator for more than one month.
5. Suppress, hide or change a testament.
6. Found guilty by trial for adultery with the testator’s spouse.
7. Threaten, through fraud, or violence:

• a. compel to draft a will
• compel to change a will
• impede to draft a subsequent will
• impede to revoke a prior will

Causes for disinheritance of descendants:

1. Decline to provide sustenance for testator, without a legitimate reason.
2. Offend the testator by words or actions.
3. Engage in prostitution as a profession.
4. Accuse the testator of committing a felony, except when the felony is committed against the accuser.

Causes to disinherit parents or ascendants:

1. Being deprived of patria potestas.
2. Decline to provide sustenance, without a legitimate reason.
3. Accuse the testator of a felony.
4. Fail to post bail, having the resources to do so.
5. Being negligent in providing care.
6. Attempting to murder the opposite parent.

Causes to disinherit a spouse:

1. All the causes to grant a divorce.
2. All the casuses to deprive a parent from patria potestas, such as:

• Cause, or risk, physical, mental or emotional damage to a child, or permit another person to do so

• Fail to accompany a minor as stated by law, supervise the minor’s education and development, or provide adequately for sustenance, clothing, shelter, health care, in accordance to a parent’s economic capacity, or those provided by the State, or any other physical or private entity. Health care is comprised of the medical treatment necessary to treat any physical, mental or emotional condition, or to prevent a condition from occurring.

• If, while having the economic capacity to do so, fail to provide care and custody of the minor.

• Failing to provide a reasonable amount of child support, according to economic capacity.

• Failing to visit or communicate with the minor.

3. Decline to provide sustenance to the testator, or his/her children.
4. Attempt to murder the testator.

What are the effects of the disinheritance?

1. It has the effect of depriving the forceful heir of his legitimate portion of the estate.
2. The disinheritance prevents the disinherited heirs off spring from inheriting.
3. Any forceful heir that has received a donation from the testator, and is disinherited afterwards is considered a third-party to the estate, or a stranger, and therefore the donation is attributed to the free disposition third.
4. If an heir is disinherited, and the reason cannot be proven, or is invalid, the institution of other heirs in the testament is not invalidated. The other heirs must now redistribute the estate’s assets to include the once disinherited heir.

Finally, as you can see, the disinheritance is a complex estate matter. It is both uncommon, and has several formal requirements to be effective. The institution of a forceful heir is protected in our jurisdiction, which is why it is so difficult to disinherit a forceful heir in Puerto Rico. Regardless, a testator can recur to several reasons specified by law to this inherent, and has the option to do so if the heir has offended him or her in such a great matter that the heir must be excluded from the estate.

Full post as published by Puerto Rico Law Blog on October 27, 2010 (boomark / email).