SUMMARY OF THE ARTICLE
- When can a donation be revoked?
If the donor had no children or descendants at the time of the donation and later has a child (including a posthumous child) or discovers that a descendant believed to be deceased is in fact alive, the donation may be revoked.
- Legal basis
Revocation due to the birth or discovery of children is regulated by articles 644 to 646 of the Spanish Civil Code. It is an objective ground: there is no need to prove ingratitude or breach by the donee. The mere appearance of children after the donation is sufficient.
- Time limit, procedure and documentation
The time limit to revoke a donation or gift is 5 years from the birth of the child or from the moment the existence of the descendant becomes known. Revocation is not automatic and, if there is no agreement, it must be pursued through the courts. Evidence of filiation, the donation deed and related documentation must be provided.
In Spain, lifetime donations are, in principle, irrevocable. However, the Spanish Civil Code establishes specific legal grounds allowing a donor to cancel a gift. One of the best-known grounds is the ingratitude of the donee, which we have analysed in previous articles. Less well known is the possibility to cancel a gift due to the birth of children of the appearance of a descendants who were thought to be dead but are not. In this article, we analyse when and how to revoke a donation or gift in these circumstances.
What does the law provide? Spanish Civil Code
Articles 644 to 646 of the Spanish Civil Code regulate the right to revoke a donation where the donor had no children or descendants at the time of the donation and subsequently:
.- He/she has children, including posthumous children (those born after the donor’s death).
.- Discovers that children or descendants believed to be deceased are in fact alive.
In these situations, the donor is entitled to cancel or revoke a donation on an objective basis, without having to allege fault or ingratitude on the part of the beneficiary. The mere appearance of legitimate descendants is sufficient to cancel the gift.
Deadline to revoke a donation or gift.
Spanish law establishes a five-year time limit to cancel a donation. This period starts from the birth of the child or, where children or descendants were believed to be deceased, from the moment their existence becomes known.
It is essential to act promptly, as once this time limit has expired it will no longer be possible to cancel the donation or gift. For this reason, all documentation proving the birth or discovery of the descendant should be gathered before starting the process to revoke a donation.
Documentation required to cancel a donation or gift.
To cancel a donation due to the birth or discovery of children or descendants, specific documentation is required. In particular, the birth certificate of the child or descendant must be provided to prove the family relationship. The donation deed relating to the donation to be revoked will also be required.
It must be borne in mind that revoke a donation is not an automatic process. In the absence of an agreement between the parties, the donor (or their descendants) must initiate court proceedings to revoke a donation. Specialist legal advice significantly facilitates the process and increases the likelihood that the right to revoke a donation is exercised correctly and within the statutory time limit.
Other relevant considerations.
As indicated, this ground for revocation is objective. In other words, the mere appearance of children or descendants is sufficient to invoke it. This ground to revoke a donation or gift is also compatible with other grounds provided for in the Spanish Civil Code, such as ingratitude of the donee or breach of conditions.
Conclusion.
The birth or survival of children or descendants is a sufficient legal ground to revoke a donation or gift in Spain. At White & Baos Lawyers, we are specialists in civil and succession law and can advise you throughout the entire process to cancel a gift, from gathering documentation to court proceedings, ensuring that your rights are effectively protected. Do not hesitate to contact us, for expert legal advice.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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