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Thread: Is this condition enforceable that was put on the will?

  1. #1
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    Default Is this condition enforceable that was put on the will?

    My father from Spain passed away and left a substantial amount of money to myself as the sole heir. However he has put a condition in his last will and testament that I divorce my wife of 7 years and have no contact with her. We do not have any children together yet but are planning on starting a family soon. All the court proceedings and taxes have been paid but the executor and lawyers are holding the estate until I divorce. Is this condition that has been placed on me enforceable? Do I have to divorce my wife whom I love just because my father did not like her to receive my inheritance? Does Article 792 or 793 apply here? Thank you for your time.

  2. #2

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    Hello,

    The Civil code does not expressly indicate that the testator is not allowed to include specific clauses in the Will that condition the inheritance to future divorces. Nevertheless, article 793 of the Civil Code render such a clause as void:


    Article 793. The absolute condition of not making a first or subsequent marriage shall be deemed not written,
    unless it is imposed on the widow or widower by the deceased spouse, or by the ascendants or descendants
    of the latter.
    However, the usufruct, use or habitation, or a personal allowance or benefit may be bequeathed by legacy to
    any person for the time during which he remains single or widowed.

    There are some authors that, regardless the analogic interpretation of this limitation, understand that it would equally affect the individual freedom; that is:

    “The condition that encourages separation or divorce must be regarded as unlawful. , but not so the condition leading to financially support the person in such circumstances, which is a distinction that requires the interpretation of the will of the testator to find out the intended purpose.”

    DURAN (1638, cap. III, nš 16)
    FOLLIA CAMPS (2011, p. 279

    As in most cases, it is a Judge who has the final say.

    Regards,
    Patricia Martin
    Legal Assistant at Lawbird
    Check My Profile

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