Does di­vorce au­to­mat­i­cally re­voke the nam­ing of an ex­spouse as ben­e­fi­ciary?

Costa Levante News - - RESIDENTS' ADVICE DESK - Le­gal and Tax ad­vice from Fer­nando Aliaga

A re­cent Span­ish High Court de­ci­sion dated Septem­ber 28, 2018 has fi­nally pro­vided clar­ity with re­gard to what has been a con­tro­ver­sial le­gal is­sue with re­gard to wills that are not changed af­ter di­vorce rul­ings and which con­tain a ref­er­ence to an ex­spouse as a ben­e­fi­ciary of the de­ceased. There is no ex­press reg­u­la­tion of the ques­tion in the Span­ish Civil Code although ar­ti­cle its 767 has been used to try and make a case for the re­vo­ca­tion of the des­ig­na­tion of an ex­spouse as a ben­e­fi­ciary in a will.

The said ar­ti­cle 767 of the Civil Code es­tab­lishes that any des­ig­na­tion of a ben­e­fi­ciary made on the ba­sis of a false cause should be con­sid­ered as ‘not writ­ten’ in the will. As such, the ques­tion is whether a di­vorce of the spouses would con­sti­tute a false cause and pro­vide grounds for the an­nul­ment of the des­ig­na­tion of an ex­spouse (who ob­vi­ously was the hus­band or wife of the de­ceased at the time that the Will was made).

In the case that the High Court ruled on, the chil­dren of the de­ceased con­tested the will’s des­ig­na­tion of their mother’s ex­hus­band as one of her ben­e­fi­cia­ries due to the cou­ple hav­ing di­vorced sev­eral years prior to her death. Both the dis­trict court and the re­gional ap­peal court in Va­len­cia ruled in favour of the de­ceased’s ex­hus­band on the ba­sis of the ar­gu­ment that there was no cer­tainty that the de­ceased’s in­ten­tion was to dis­in­herit her ex­hus­band and the fact that the cou­ple had di­vorced could not be con­sid­ered as con­sti­tu­tive of a tacit re­vo­ca­tion of the dis­po­si­tion made in the Will.

The ap­peal court con­sid­ered that the will should be in­ter­preted lit­er­ally, un­less ir­refutable ev­i­dence could be pro­vided of the fact that the de­ceased did not wish for the dis­po­si­tion in favour of the ex­spouse to re­main valid af­ter the de­ci­sive change of cir­cum­stances (i.e. the di­vorce of the spouses).

Af­ter the ini­tial rul­ings in favour of the ex­hus­band, the High Court ad­mit­ted an ap­peal filed by the de­ceased’s chil­dren which ba­si­cally al­leged that there was a case of a ‘false cause’ re­ferred to in ar­ti­cle 767 of the Civil Code which, if up­held by the Court, would re­voke the nam­ing of the ex­hus­band as a ben­e­fi­ciary in the will. The High Court fi­nally passed judge­ment and up­held the ap­peal filed by the chil­dren and con­sid­ered that when a change of cir­cum­stances oc­curs that changes the fun­da­men­tal rea­son for the nam­ing of the ben­e­fi­ciary, the cor­re­spond­ing dis­po­si­tion would be­come in­ap­pli­ca­ble.

As the will that was con­tested es­tab­lished a dis­po­si­tion in favour of the “hus­ band” of the de­ceased, the use of the said term was con­sid­ered to be a de­ci­sive con­sid­er­a­tion with re­gard to the fact that the de­ceased wished to name her hus­band as a ben­e­fi­ciary as a re­sult of their mar­i­tal sta­tus and that once the said sta­tus changed by virtue of their sub­se­quent di­vorce, the rea­son for her nam­ing him as her ben­e­fi­ciary (as her hus­band) would there­fore be re­voked.

Although the de­ci­sion clar­i­fies the un­der­stand­ing of the mat­ter from the point of Span­ ish law ap­pli­ca­ble to Span­ish na­tion­als and those per­son’s sub­ject to Span­ish law, one must al­ways re­mem­ber that the Law ap­pli­ca­ble to the suc­ces­sion of the de­ceased is de­ter­mined by the rules con­tained in the EU Reg­u­la­tion on Suc­ces­sion and that as such, the afore­said prece­dent would only be ap­pli­ca­ble in those cases in which Span­ish law were ap­pli­ca­ble to the de­ceased’s in­her­i­tance. In the case that the de­ceased’s na­tional law were ap­pli­ca­ble, and this were not Span­ish law, the con­sid­er­a­tion of whether a dis­po­si­tion in a will re­fer­ring to an ex­spouse would be valid or not would have to be re­solved by the ma­te­rial law of the na­tion­al­ity of the de­ceased.

For ex­am­ple, in the case of a French na­tional liv­ing in Spain who made a will in which he opted for the ap­pli­ca­tion of his na­tional law as op­posed to Span­ish law (as the law ap­pli­ca­ble in his place of res­i­dence), the ques­tion con­cern­ing the va­lid­ity of the dis­po­si­tion in favour of an exspouse would be an­swered by French law.

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