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