Sometimes family relationships break down badly: a son who mistreated his mother, a father who abandoned his children, a spouse who left the other alone when they were most needed. Puerto Rico law offers two ways to keep that person from inheriting: disinheritance (desheredación) and unworthiness (indignidad). Both have strict rules, and using them incorrectly can leave a will only partly effective.
This guide explains the rules of the Código Civil de Puerto Rico de 2020 (2020 Civil Code), which applies to deaths since November 28, 2020.
Two different concepts
| Disinheritance | Unworthiness | |
|---|---|---|
| What it is | An exclusion the causante (the deceased person whose estate it is) makes in their own will | An exclusion the law imposes for serious misconduct |
| Who it affects | Only forced heirs: descendants, the spouse and, where applicable, ascendants | Any heir or legatee |
| Requires a will | Yes | No: applies with or without a will |
| Key deadline | 2 years to challenge it from when it becomes known (Art. 1633) | 4 years to request it from when the unworthy person takes possession of the assets (Art. 1561) |
You do not need to disinherit someone who is not a forced heir. A sibling, a nephew or a cousin has no forced share. If you do not want them to inherit, it is enough to make a will that leaves all your assets to other people. See the forced share.
Disinheritance
Disinheriting is "the testamentary provision that deprives a forced heir of their right to the inheritance" for one of the grounds in the Code (Art. 1631). The forced heir (legitimario) is the person who has a share reserved by law, the legítima (forced share).
Form: in a will, with an express ground
- Only in a will. A letter, a conversation or a separate document is not valid.
- The ground must be stated "expressly and clearly" (Art. 1632). It is not enough to say "I disinherit my son"; you must state the legal reason.
- It is wise to describe the facts. If the disinheritance is challenged, it is the heirs who will have to prove them (Art. 1633).
A testamento abierto (will executed before a notary) is signed before a notario, who in Puerto Rico is an attorney authorized to certify documents as authentic. See types of wills and how to make a will.
Permitted grounds
In addition to any ground for unworthiness (see below), the Code allows you to disinherit:
Descendants (Art. 1635): - for refusing to provide support (alimentos) to the testator without a legitimate reason; - for mistreating the testator, gravely insulting them or attempting to take their life; - for having been negligent in caring for the testator when they were ill or could not take care of themselves.
Ascendants (Art. 1636): the same grounds, plus having been deprived of parental authority (patria potestad) over the testator, or one parent having attempted to take the other's life without a reconciliation.
The spouse (Art. 1637): having been deprived of parental authority over the couple's children; refusing support to the testator or to their children without a legitimate reason; mistreatment, grave insult or an attempt on the testator's life; or negligence in caring for the testator when they were ill or could not take care of themselves.
The list is closed. A ground that is not in the Code, such as "because he never visited me" or "because she married the wrong person," does not work, unless the facts fit a legal ground such as negligence in providing care.
If the disinheritance fails
The will does not fall. If the disinheritance was made without a ground, for a ground that cannot be proven or for a ground that is not in the Code, it has the effects of preterición (omission of a forced heir) (Art. 1634): the rest of the will remains valid, but the disinherited person gets back their forced share (Arts. 1629–1630).
Reconciliation cancels it. If, after disinheriting someone, the testator reconciles with that person, the disinheritance has no effect and also has the effects of preterición (Art. 1638). If the disinherited person claims there was a reconciliation or forgiveness, it is up to them to prove it (Art. 1633).
Deadline to challenge: 2 years. A disinherited person who wants to challenge it has 2 years from learning of the disinheritance. After that, the action expires (Art. 1633). If you were disinherited and believe the ground is false, do not let the time pass. See also contesting a will.
Unworthiness to inherit
A person is unworthy to inherit if they (Art. 1556):
- abandon or physically or psychologically mistreat the causante;
- are convicted of attempting to take the life of the causante, the causante's spouse, descendants or ascendants, the executor or another person called to the inheritance whose death would benefit them;
- are convicted of falsely accusing or reporting the causante for a felony;
- fail for 3 consecutive months or 6 non-consecutive months to meet the obligation to support the causante imposed by an agency or a court;
- through deceit, intimidation, fraud or violence, induce or prevent the causante from making, revoking or changing their will, or knowingly take advantage of those acts;
- destroy, hide or alter the causante's will.
How it works
- It is measured at the moment of death, when the estate opens (Art. 1557).
- Only someone who benefits from the unworthy person being left out can raise it, usually the other heirs (Art. 1558).
- Once declared, it deprives the unworthy person of the inheritance or the bequest and, where applicable, of their status as a forced heir, effective from the death (Art. 1558).
- They must return the assets received, with the income they produced, from the time they came into their possession (Art. 1559).
- Forgiveness. Unworthiness has no effect if the causante, knowing the facts, left them something in a later will, reconciled with them through unequivocal acts or forgave them in writing. Forgiveness is irrevocable (Art. 1560).
- Deadline: 4 years. The action to declare unworthiness expires 4 years after the unworthy person takes possession of the assets as heir or legatee (Art. 1561).
What happens to the children of a disinherited or unworthy heir
They can inherit in that heir's place. The right of representation applies when the person called to inherit "is declared unworthy or incapable" or "has been disinherited" (Art. 1612). Their descendants receive what that person would have received, divided by branches (Art. 1614). We explain this in children, grandchildren and representation.
Don Aurelio disinherits a son. Don Aurelio, a widower, has three children: Inés, Raúl and Hugo. In his will, he disinherits Hugo for mistreatment, describing the facts, and names Inés and Raúl heirs to everything. Hugo has two children. The net estate is $300,000.
- Forced share: $150,000, in three branches of $50,000.
- Hugo's two children represent him in his forced share: $25,000 each.
- Free portion: $150,000, which the will leaves to Inés and Raúl: $75,000 each.
- Result: Inés and Raúl receive $125,000 each ($50,000 + $75,000); the grandchildren, $25,000 each.
If the ground could not be proven, the disinheritance would have the effects of preterición: Hugo would receive his forced share of $50,000, and the other $250,000 would be divided according to the will, $125,000 for Inés and $125,000 for Raúl.
The excluded parent does not manage the children's share. If the grandchildren are minors, the disinherited or unworthy parent does not manage the assets they inherit in that parent's place; the law presumes there are conflicting interests (Art. 627(b)). See minors as heirs.
Nor can they serve as executor. An unworthy or disinherited person cannot be the albacea (executor), administrator or contador partidor (the person appointed to divide the estate) of that estate (Art. 1729).
Frequently asked questions
Can I disinherit my son because he has not spoken to me in years?
Lack of contact, by itself, is not a legal ground. But if the facts fit a ground in the Code, such as refusing support without reason or neglecting you when you were ill, it may be considered. Describe the facts clearly in the will and get advice when you sign it.
Can I disinherit my husband or wife if we are separated?
Only for the grounds in Art. 1637, such as mistreatment or refusing support. Separation by itself is not a ground. Until there is a divorce judgment, a separated spouse is, in principle, still a forced heir. See rights of the surviving spouse.
Is a court judgment needed for someone to be unworthy?
Some grounds require a prior criminal conviction, such as attempting to take the causante's life or falsely reporting them. The others are proven in court if there is a dispute. The declaration is requested by the person who benefits from it, within 4 years from when the unworthy person takes possession of the assets.
Can my children inherit if I was disinherited?
Yes. Your children can represent you and receive the part of the forced share that would have been yours (Arts. 1611–1612).
What happens if the disinherited person already received assets before the matter is resolved?
If unworthiness is declared, the unworthy person must return the assets with the income they produced (Art. 1559). In a valid disinheritance, the disinherited person has no right to the forced share, and the heirs can claim whatever that person took. While there is a dispute, avoid selling or dividing assets without everyone's agreement.
Sources
- Código Civil de Puerto Rico de 2020 (Ley 55-2020), Arts. 1556–1561 y 1628–1638, compilación de OGP. bvirtualogp.pr.gov
- Código Civil de Puerto Rico de 2020, Arts. 627, 1611–1615 y 1729. bvirtualogp.pr.gov
- Gerena Casanova, "El Código Civil de PR de 2020, cambios en la sucesión testada", 90 Rev. Jur. UPR 895 (2021). derecho.uprrp.edu
- Gómez Pérez y Alemán Rivera, "Derecho de Sucesiones", 91 Rev. Jur. UPR 561 (2022). derecho.uprrp.edu
CaudalRelicto.com is an independent guide. It is not Puerto Rico's Departamento de Hacienda, the courts or any government agency. This page is general information, not legal advice from an attorney who knows your case. Names and figures in examples are hypothetical. Found an error? Tell us.
