Left out of your father's will: the preterición claim
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
If your father made his will before you were born and it does not name you, this is unintentional preterición: article 814 of the Código Civil voids the appointment of heirs and you recover your legítima, which for children is two thirds of the estate. The claim is brought before the sección civil del Tribunal de Instancia and case law applies the four year time limit of article 1301.
Your father died eight months ago. At the notary's office you receive a copy of the will and discover that it is dated 1996, two years before you were born: it appoints your two older brothers as universal heirs and does not name you anywhere. Your brothers tell you the will says what it says and that they will give you something. The estate is a flat worth around three hundred thousand euros, an account holding forty thousand and a parking space. You have signed nothing yet.
The case, in five lines
- What is brought
- Action for unintentional preterición under article 814 of the Código Civil, seeking annulment of the appointment of heirs and a fresh division of the estate that includes your legítima.
- Before which court
- The sección civil del Tribunal de Instancia (the civil section of the first-instance court) of the deceased's last domicile, through ordinary proceedings given the usual value of these estates.
- Deadline
- Four years, as a lapse period applied by analogy from article 1301 of the Código Civil. The prudent course is to count from the moment you learn the contents of the will, never later, because a lapse period is not interrupted by an out of court demand.
- Who can bring it
- The omitted forced heir and that heir's own successors. Under article 807, forced heirs are children and descendants, failing them parents and ascendants, and the surviving spouse to the extent the Código sets out.
- Financial risk
- If the case is lost, costs may be awarded against you under the loser pays rule, and the valuation expert report is paid up front by the party proposing it. The case sets siblings against each other and usually closes off any later friendly division.
Preterición is not disinheritance: nobody had to want you out
Disinheritance is a conscious decision that the testator writes down and gives reasons for. Preterición is the opposite: the testator simply does not mention you, almost always because when the will was signed you did not exist or were not yet a forced heir. Article 814 of the Código Civil separates the two situations and reserves its strongest effects for the unintentional preterición of children or descendants, which is exactly what happens when the will predates your birth.
That distinction decides the outcome of the case. If the omission was intentional, the first paragraph of article 814 does no more than protect the legítima by cutting back the appointment of heirs before any legacies or mejoras. If it was unintentional, the second paragraph goes much further and voids the appointment of heirs as a whole, with the single exception of an appointment in favour of the spouse, which is voided only to the extent that it harms the legítimas.
Article 814 voids the appointment of heirs, not the whole will
This is the most expensive mistake in this area and it is worth settling before the claim is drafted. Article 814 draws two situations apart: if all the children or descendants are omitted, the provisions of the will with financial content are voided; otherwise, that is where only one of them is left out, the appointment of heirs is voided but any legacies and mejoras ordered under any title remain good, in so far as neither of them is excessive.
If you are the only one omitted and your brothers were appointed, what falls is the appointment of heirs and the succession is reordered, yet the appointment of an executor, the acknowledgement of debts or a legacy of a specific asset may survive. The article itself closes by recalling that, saving the legítimas, whatever the testator ordered prevails in every case, so the deceased's wishes still govern everything that does not invade your share.
What you recover is the two thirds legítima of article 808
Article 806 defines the legítima as the portion of assets the testator cannot dispose of because the law reserves it for certain heirs, called forced heirs for that reason. Article 808 quantifies it for children and descendants at two thirds of the parents' estate, and allows the parents to dispose of one of those two parts as a mejora in favour of one of them. The remaining third is freely disposable.
That is why the amount claimed does not come from simply dividing the estate among the children. You first have to fix the estate, then set aside the freely disposable third and the mejora third, and only then work out the strict legítima that falls to you. Article 808 adds a rule of its own where one of the forced heirs is in a situation of disability, in which case the testator may dispose in that heir's favour of the strict legítima of the others.
The four years of article 1301 run and letters do not stop them
Article 1301 of the Código Civil provides that the action for annulment lapses after four years and lists when that time starts to run in cases of intimidation, violence, mistake, fraud, false cause, contracts made by minors and acts by one spouse without the other's consent. Case law transfers that four year period by analogy to succession annulment claims, and that is the reference the case is worked with.
The practical consequence is harsh: a lapse period, unlike a limitation period, is not interrupted by a formal notice or by negotiation between siblings. You can spend two years exchanging division proposals, believe the matter is moving forward and find that the door has closed. That is why the work is organised the other way round, fixing the deadline first and negotiating inside it, with the claim ready to file.
Accepting the estate or taking a share before suing can cost you the case
The appointed heirs usually offer a sum in exchange for you signing the deed of acceptance and division. Signing without an express reservation of the preterición claim is the worst moment in the case: you are recognising as valid the very appointment of heirs you later intend to have voided, and the other side will raise it as your own conduct against you in the defence.
If you have already received something the case is not necessarily lost, but it changes shape: the argument becomes what was signed, on what information and whether or not there was a reservation. While the estate is being valued, the sensible course is neither to accept nor to renounce, and to record in writing that any sum received is on account of the legítima being claimed, with no waiver of anything.
How we run the case, step by step
- 1
Reconstruct the succession from the documents
We gather the death certificate, the certificate of last wills and the authorised copy of the final will, and we contrast its date with your full birth certificate. That comparison of dates is what turns the omission into unintentional preterición.
- 2
Value the estate and calculate your legítima
We inventory property, accounts, securities and debts as at the date of death and trace the lifetime gifts that have to be brought into account. The two thirds of article 808 are applied to that estate to establish what is claimed and the amount the claim is worth.
- 3
Formally demand from the appointed heirs with the deadline calculated
We notify them in writing of the preterición, the calculation and a proposed division that includes you. Many cases close here because the other side sees that article 814 voids their status as heirs and prefers to divide the estate rather than lose everything.
- 4
Sue before the sección civil del Tribunal de Instancia
The claim seeks a declaration of unintentional preterición, annulment of the appointment of heirs under article 814 and, joined to it, the formation of new shares. The valuation report on the property in the estate is filed with it.
- 5
Enforce the judgment and divide the estate again
With the appointment voided, the division is redone. If the co-heirs still refuse to sign, judicial division of the estate is used so that the proceedings themselves form the shares and award the assets without needing their consent.
The evidence that decides the case
- The authorised copy of the will, showing the exact date on which it was made.
- Your full birth certificate, placing your birth after that date.
- The certificate of last wills, proving that there was no later will that did mention you.
- The land registry extracts and the expert valuation report on the property in the estate.
- The deceased's bank statements for the final years, which reveal lifetime gifts that must be brought into account.
- Any document in which the appointed heirs admit in writing that you were not taken into account.
What closes the door
- Signing the deed of acceptance and division without expressly reserving the claim: it becomes the conduct of your own that the defence will throw back at you.
- Negotiating for years trusting that the lapse period is interrupted. It is not: the four years keep running while proposals are exchanged.
- Seeking annulment of the entire will when article 814 only voids the appointment of heirs, which exposes the claim to partial dismissal and to a costs order.
- Taking unintentional preterición for granted without first checking whether there is a later will or a lifetime gift the deceased intended to count as an advance.
The law that applies
- Art. 814 CC. Preterición does not harm the legítima. Where it is unintentional and affects children or descendants, it voids the financial provisions if all are omitted and, if not, voids the appointment of heirs while leaving legacies and non-excessive mejoras standing. BOE-A-1889-4763
- Art. 806 CC. Defines the legítima as the portion of assets the testator cannot dispose of because the law reserves it for certain heirs, called forced heirs for that reason. BOE-A-1889-4763
- Art. 807 CC. Lists the forced heirs: children and descendants; failing them, parents and ascendants; and the surviving spouse in the manner and to the extent the Código itself establishes. BOE-A-1889-4763
- Art. 808 CC. Sets the legítima of children and descendants at two thirds of the estate, allows one of those two parts to be used as a mejora, leaves one third freely disposable and regulates the case of a forced heir with a disability. BOE-A-1889-4763
- Art. 1301 CC. The action for annulment lapses after four years and the article lists the starting day in cases of intimidation or violence, mistake, fraud or false cause, contracts by minors, persons with disabilities acting without support measures, and acts by one spouse without the other's consent. BOE-A-1889-4763
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Does preterición make me an heir or does it only give me money?
It depends on the scope of the annulment. When article 814 voids the appointment of heirs, the succession is reordered and you take part alongside your brothers in the part affected, rather than receiving mere compensation. If the will also contained valid legacies or mejoras, those provisions are respected in so far as they are not excessive, so the final result is a fresh division of the estate and not an isolated payment.
The will was made after I was born but still does not name me. Does this still work?
It changes the terrain. If the testator already knew you existed, the other side will argue the omission was intentional, and then the first paragraph of article 814 does no more than protect the legítima by cutting back the appointment of heirs before legacies and mejoras. You still have a case and still recover your share, but the annulment does not sweep away the whole appointment and proving the nature of the omission becomes the centre of the case.
Exactly when do the four years start to count?
Article 1301 fixes the four year length, but its list of starting days is designed for contracts, not for successions. That is why the starting point is disputed and the other side will always argue for the earliest one possible. The way not to lose the case over that argument is to assume the least favourable date, normally the opening of the succession, and to work to that calendar from day one.
My father left nothing in my name but had given the house to my brother. Do I still have a case?
Yes, and it tends to be the commonest scenario. Preterición is calculated on an estate that is not only what was left in the bank on the day of death: lifetime gifts have to be brought into account before the legítima is fixed. If the outcome is that the gift ate up your share, the reduction of that gift as excessive is brought alongside the preterición, and both claims are joined in the same suit.
Can I claim if my father died six years ago?
With six years gone since the opening of the succession, the annulment claim is at serious risk of having lapsed, and that will be the first ground of opposition. What remains to be examined is when you actually learned of the will and whether its contents were concealed from you in that time, because there are situations where the date of knowledge is far later. It is an analysis of dates worth doing before anything is moved.
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.