Acceptance and Renunciation of Inheritance: Articles 988 and following of the Civil Code
Both acceptance and renunciation are entirely voluntary and free acts according to Article 988 of the Civil Code, and their effects retroact to the moment of the death of the person being inherited. In times of economic crisis, the renunciation of inheritance becomes particularly important when it is known for certain that there are debts, encumbrances, or liens, or when the inheritance tax (depending on the Autonomous Community) is high and there is no money to pay it. At this point, it is worth noting that many people are unaware of the possibility of requesting a deferral for both the inheritance tax and capital gains tax. Neither acceptance nor repudiation can be partial, conditional, or timed. Additionally, once made, they are irrevocable and cannot be contested unless they suffer from any of the vices of consent, or if an unknown will appears. Acceptance can be pure and simple or with the benefit of inventory; the latter is the most common when it is known that there are debts but the estate is larger, meaning it is anticipated that after liquidating these, there will be a remaining positive balance.
Increasingly, inheritances can have debts or encumbrances that make accepting them uneconomical. This is especially true when the debts are known, as some potential hereditary liabilities, such as guarantees or sureties that the deceased had given or consented to in life, can cause unexpected surprises. This is why there are more and more inheritance renunciations.
Article 1003 of the Civil Code states that by pure and simple acceptance, or without the benefit of inventory, the heir will be responsible for all the inheritance’s charges, not only with the estate’s assets but also with their own. This extension to personal assets makes it particularly important to know the extent of these debts, which is why Article 1010 allows for an inventory of assets before accepting, accepting with the benefit of inventory, or renouncing the inheritance. No one can be compelled to accept within nine days of the death, and creditors, according to Article 1005, can require the heir to declare within 30 days whether they accept or repudiate the inheritance.
However, renouncing the inheritance means not being an heir, which implies that the delation in favor of the renouncer disappears, leading to the call of the substitute heir, the right of accrual, or the total or partial opening of intestate succession. It is relevant to mention Article 923, as renouncing all relatives of the closest degree transfers to the next degree without the right of representation.
Nevertheless, repudiation does not imply renunciation of all benefits, as inferred from Article 833 (The improved child or descendant can renounce the inheritance and accept the improvement), Article 890.2 (The heir who is also a legatee can renounce the inheritance and accept the legacy, or renounce the legacy and accept the inheritance), and Article 928 (The right to represent a person is not lost by renouncing their inheritance), but we also find Article 440 (He who validly repudiates an inheritance is understood to have never possessed it).
Renunciation must be express, and following the Law of Voluntary Jurisdiction of 2015, which modifies Article 1008 of the Civil Code, the repudiation of inheritance must be made before a Notary in a public instrument, eliminating the previous possibility of also doing so judicially.
In addition to the decedent’s debts, the heir may also be tempted to renounce due to their own debts, that is: I do not accept my parents' inheritance because as soon as I acquire it, my creditors will seize and execute it. Article 1001.1 seeks to prevent this fraudulent behavior by stating that if the heir repudiates the inheritance to the detriment of their own creditors, the creditors may ask the Judge to authorize them to accept it on behalf of the heir.
Leocricia González Abogados.