Kinship Bonds and Emotional Ties: The Lack of Family Relationship as Ground for Disinheritance

Abstract

A topical issue in the context of the general debate about the need to retain or abolish forced share in Spain is the question of whether to broaden the range of grounds for excluding a forced heir from his or her share of the estate. There is particular debate surrounding the appropriateness of adding estrangement or the lack of a family relationship to the list of grounds, with the aim of increasing testamentary, freedom. Some countries have a tendency to allow ties of affection to prevail over purely family or kinship ties in this matter, but sometimes at the cost of legal certainty, and - since such a vague ground is not necessarily more respectful with freedom of testation - despite the risk that the courts may not always achieve the justice sought by a testator who wishes to disinherit a forced heir that shows no affection for her. This paper considers the different approaches to this topic between different legal systems. The Catalan and the German ones just represent extreme examples of radical different tendencies. In Spain, recent case law has provided new arguments for thinking about what the law says, how the courts interpret, and, finally, what the society expects.