Disinheriting the child who ignores you: psychological abuse
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
It can be done, but the clause is prepared, not improvised. The ground must be stated in the will and must be one of the legal grounds: article 853.2 of the Código Civil accepts having ill-treated the ascendant. If your heirs cannot prove it once the disinherited child denies it, article 851 voids the appointment of heirs in so far as it harms him and the legítima returns in full.
You are seventy eight and have two children. One takes you to your check-ups and brings your shopping. The other has not called for ten years: he did not appear when you had your hip operated on, he did not answer when you were widowed and he wrote only once, to ask about the village house. You want your estate to go to the child who has been there. At the notary's office you are told you may disinherit the other, but also warned that the clause can be fought in court and that it will then be your other child who has to prove everything.
The case, in five lines
- What is brought
- Drafting of the disinheritance clause on the ground in article 853.2 of the Código Civil and building in advance the evidence your heirs will need to sustain it, together with the later defence of the clause against any challenge.
- Before which court
- No court intervenes while you are alive. The clause will be argued over, if it is argued over at all, before the sección civil del Tribunal de Instancia (the civil section of the first-instance court) of what was your last domicile.
- Deadline
- You have no time limit: you may make and revoke the will while you retain capacity. The clock runs afterwards, for the disinherited child, who has four years from the opening of the succession to challenge the clause.
- Who can bring it
- Only the ascendant may disinherit a child or descendant on the grounds in article 853. Afterwards the burden of sustaining the ground falls on your heirs, under article 850, if the disinherited person denies it.
- Financial risk
- If the ground is not proved, article 851 voids the appointment of heirs in so far as it harms the disinherited person, who recovers his share, with a possible costs order against whoever defended the clause. The litigation will be borne by your children, not by you.
Article 853 allows only two grounds of its own, and they must be named properly
Article 853 of the Código Civil lists the grounds for disinheriting children and descendants. In addition to those listed in article 756 under numbers 2, 3, 5 and 6, it adds two grounds of its own: having refused, without legitimate reason, maintenance to the parent or ascendant who disinherits, and having ill-treated that person by act or gravely insulted them by word. There is no third route and the clause has to anchor itself in one of these.
The silence of a child over many years does not appear in those words in the Código. The route through which the case law of the First Chamber of the Tribunal Supremo has allowed it to reach disinheritance is the ill-treatment by act in the second ground, on the understanding that sustained psychological abuse is a form of ill-treatment. That reading is what holds the case up, and this is why the clause must rely on ill-treatment by act and not on a generic abandonment.
The practical consequence is one of drafting. A clause saying that the child is disinherited for his coldness relies on no legal ground at all, whereas one referring to the ill-treatment by act of article 853.2 and describing the facts that make it up does fall within the list. The difference between them is not one of style: it is the difference between a clause that can be argued and a clause that falls on its own wording.
With no ground stated in the will, the clause never reaches the hearing
Two articles filter every disinheritance before the facts are ever argued. Article 848 provides that it may only take place on one of the grounds the law expressly lays down. Article 849 requires that it may only be made in a will, stating in it the legal ground on which it is based. If either of the two is missing, the case is lost without a single witness giving evidence.
That is why the discreet formulas sometimes suggested to avoid family conflict are precisely the ones that lose the case. Disinheriting for reasons the child knows, or referring to a letter kept separately, does not satisfy article 849. The ground is stated in the will, with the legal reference and with facts specific enough to identify what is being spoken of, even if an exhaustive account is not required.
If the ground is not proved, the loser is not you: it is your other children
Article 850 provides that proof that the ground for disinheritance is true falls on the testator's heirs if the disinherited person denies it. When you are no longer there, the one who will have to maintain before the court that there was ill-treatment is the child you meant to benefit, with whatever means you have left him. That is why the clause is prepared while you are alive and not left to the family's good memory.
If that evidence fails, article 851 voids the appointment of heirs in so far as it harms the disinherited person, although legacies, mejoras and the remaining provisions of the will stand in whatever does not harm that legítima. That is, the absent child recovers his share and his brother will have litigated for years for nothing, with the added risk of a costs order under the loser pays rule.
Evidence of psychological abuse is built while you live or it does not exist
Psychological abuse is proved with dated, verifiable facts, not with impressions. What works is messages sent and left unanswered, emails with delivery records, calls logged on the phone bill, a notarial request asking the child to make contact and what came of it, the hospital visitor register during an admission, and evidence from those who care for you and see who turns up.
Medical reports reflecting how the situation affects you also carry weight, provided the professional records the account with a date and consistently over time. All that material is organised into a file kept with the will and reviewed from time to time, because a clause made eight years ago with evidence from eight years ago leaves a very wide gap up to the date of death.
An undocumented later rapprochement weakens all the work
Family relationships move. A visit at Christmas, a long call after a health scare or a few weeks of help during a convalescence are facts the other side will take to the hearing as proof that the breakdown was not what is claimed. It does not mean the clause collapses over a single visit, but the account of the facts stops being clean and the case becomes far more contested.
That is why the file is kept alive. If there is a genuine rapprochement and you change your mind, the right course is to make a new will reflecting that wish. If the rapprochement was a one-off and changed nothing, it is worth recording in writing and with a date what happened and how it ended, so that years later nobody can present an isolated episode as a reconciliation you did not experience as such.
How we run the case, step by step
- 1
Classify the facts before a single line is written
We take the full account with dates and test it against the grounds in article 853 to decide whether it fits the ill-treatment by act of the second ground or whether there is also a refusal of maintenance. The whole clause depends on that classification.
- 2
Gather and date the available evidence
Messages and emails are exported, phone bills are requested, carers and neighbours are identified as future witnesses, and medical reports and visitor records from hospital admissions are traced. The material is organised and closed with a certain date.
- 3
Formally call on the child and record the outcome
Where the case makes it advisable, a request with verifiable proof of delivery is sent asking him for contact or help. Whether he answers or not, the outcome is recorded and becomes one of the strongest pieces in the evidence file.
- 4
Draft the clause with the legal ground and specific facts
The clause identifies the disinherited person, expressly relies on the ground in article 853 and describes the facts precisely enough for it to be clear what is meant, meeting the requirement to state the ground in article 849.
- 5
Make the will and review it periodically
The will is made before a notary and the evidence file is kept updated alongside the copy. It is reviewed periodically to cover the period after the will was made, which is precisely the one the other side will try to exploit.
- 6
Defend the clause when the challenge arrives
Once the succession opens, we take on the defence of your heirs before the sección civil del Tribunal de Instancia, with the file already built and the witnesses identified, which is what makes it possible to meet the burden in article 850.
The evidence that decides the case
- The messages and emails sent to the child during the years of estrangement, with their dates and unanswered.
- The request with verifiable proof of delivery asking him for contact or help, and what came of it.
- The visitor register from the hospital or care home during the deceased's admissions.
- Evidence from carers, neighbours and health staff about who was there and who never appeared.
- Medical or psychological reports recording, with a date, how the situation affected the testator.
- Receipts for expenses and care taken on by the child who was present, which contrast the two courses of conduct.
What closes the door
- Disinheriting for reasons the child already knows, or referring to a separate letter. Article 849 requires the ground to be stated in the will itself.
- Relying on emotional abandonment as if it were a ground of its own. Article 853 does not list it under that name and the route is the ill-treatment by act in its second ground.
- Leaving the evidence in the family's memory. The one who will have to prove the ground is your heir, years later and without you, under article 850.
- Making the clause and never looking at it again for a decade, leaving uncovered precisely the years the other side is going to examine.
- Accepting a one-off rapprochement without recording how it ended, and handing the other side the reconciliation argument.
The law that applies
- Art. 853 CC. Adds to the grounds in article 756 under numbers 2, 3, 5 and 6 two just grounds for disinheriting children and descendants: having refused maintenance without legitimate reason to the ascendant who disinherits, and having ill-treated that person by act or gravely insulted them by word. BOE-A-1889-4763
- Art. 849 CC. Disinheritance may only be made in a will and by stating in it the legal ground on which it is based, so neither the form nor the written reasons can be dispensed with. BOE-A-1889-4763
- Art. 848 CC. Disinheritance may only take place on one of the grounds the law expressly lays down: the list is closed and does not admit personal reasons however serious they may be. BOE-A-1889-4763
- Art. 850 CC. If the disinherited person denies the ground, proving it true falls on the testator's heirs. The burden shifts to whoever defends the clause, not to whoever suffers it. BOE-A-1889-4763
- Art. 851 CC. With no stated ground, with a ground contradicted and not proved, or with a ground outside the list, the appointment of heirs is voided in so far as it harms the disinherited person, and legacies and mejoras stand in whatever does not harm that legítima. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Is it enough that my child has not called me for years?
Silence on its own does not appear as a ground in article 853. What is argued before the courts is that prolonged psychological abuse falls within the ill-treatment by act of its second ground, and that requires more than an absence of calls: specific facts, sustained over time and verifiable, showing active contempt towards you. The difference between distance and ill-treatment is exactly what decides these cases.
Can I leave him only the legítima instead of disinheriting him?
Yes, and in many cases it is the safer decision. Leaving a child only his strict legítima and concentrating the rest on whoever has cared for you requires no ground to be proved and does not expose your heirs to litigation with the burden of proof in article 850. Less is achieved than by disinheriting, but it is achieved with certainty, and that comparison is worth making with figures before deciding.
If my child challenges the clause, who pays for that litigation?
Your heirs bear it, out of what they receive or out of their own assets, because article 850 assigns to them the proof of the ground. If the defence fails, in addition to restoring the legítima there may be a costs order under the loser pays rule. That future cost is the main reason for building the evidence while you are alive and not leaving it to chance.
Is it useful to record a conversation or leave a video explaining why you disinherit him?
An explanatory video does not replace the clause: the ground is stated in the will because article 849 requires it, and outside the will it does not meet that requirement. As supporting evidence it can add context, but it weighs far less than an unanswered formal request or the evidence of those who cared for you. Energy is better spent documenting facts than explaining feelings.
What if I disinherit my child but he has children of his own?
This is a consequence to be decided expressly, not discovered afterwards. Disinheritance affects the disinherited person, but the position of his descendants regarding the legítima is a separate question that must be resolved in the will itself, setting out clearly what happens to that portion. Leaving it implicit is one of the commonest sources of litigation between grandchildren and uncles years later.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.