The legal standing to sue heirs who have tacitly accepted the inheritance

Introduction

Before analyzing the cases of tacit acceptance of inheritance, it is convenient to remember which are the modalities of acceptance of inheritance. The first modality is the pure and simple acceptance in which the heir succeeds the deceased in everything. Therefore, the Heir acquires all the rights of the inheritance and the obligations of the deceased. This implies that the Heir is liable for the debts of the deceased with his own assets.

In turn, within this pure and simple acceptance, there are two varieties. That the acceptance is express, that is to say, by means of a public or private document. Or tacit, by means of the performance of acts, which is precisely what we are going to focus on in this article.

Secondly, we find the acceptance with benefit of inventory. This is foreseen so that the Heir is only liable for the debts of the deceased with the assets of the inheritance.

Concept of tacit acceptance of inheritance

Our civil code defines in its article 999.3 what is the tacit acceptance of the inheritance. Pointing out, that it will be that one that is carried out by acts that suppose obligatorily the will to accept. Or, as the one that would not exist right to execute but with the heir condition.

Also the jurisprudence has defined it as the realization of “acts of lord”. Meaning that it is the realization of conclusive and unequivocal acts of will to accept the inheritance.

What are the effects of this tacit acceptance?

If this tacit acceptance is proved, the effects are relevant. As we said in the introduction, it is within the modality of pure and simple acceptance of the inheritance. And therefore, it not only acquires the rights and goods of the deceased but also his debts. Responding, personally, with all his patrimony.

Can these heirs, who have tacitly accepted the inheritance, be sued, or do they have to sue the Estate? Will they be able to argue lack of standing to sue?

Indeed, by assuming the debts of the deceased, the debts of the deceased can be claimed from them. However, in practice, it may be somewhat difficult to prove before a Judge the existence of these conclusive and unequivocal acts. Many heirs in this situation deny the acceptance of the inheritance opposing a lack of passive legitimization. This is based on the fact that the heirs should have sued the deceased inheritance because there was no acceptance and/or partition of the inheritance.

Articles 1000 to 1002 of the CC contain a list of acts that entail a tacit acceptance of the inheritance. However, the Jurisprudence has been recognizing more cases of tacit acceptance than those established by the Civil Code. This implies that in a judicial proceeding of claim of debts of the inheritance, these heirs are procedurally legitimized. We are going to see examples in the following point on what the jurisprudence says.

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Examples of tacit acceptance of inheritance and concurrence of passive legitimacy ruled by our Courts.

As we have already mentioned, there are not only specific causes of tacit acceptance. Any unequivocal act can trigger such acceptance.

The AP of La Rioja, in Ruling 343/2018, rejects the lack of passive standing invoked by the defendant Heir. And which was based on the fact that the inheritance of his father remained unparted and unaccepted. Thus, the Judgment states that what is relevant is the significance of the act. That is to say, the intention to make the inheritance his own and not to take care of the interest of another. Therefore, the partition is irrelevant.

The AP of Madrid in its judgment 104/2016, collects an interesting example of tacit acceptance in which they opposed lack of passive standing. Again based on the fact that the division and liquidation of the inheritance of the owner of the property had not been carried out. And although it was occupied by him, the property had not yet been awarded to him. However, the Judge, on the contrary, states that the occupation of the disputed property is a form of tacit acceptance. And he added that the fact that the partition had not been carried out did not prevent him from being an Heir. Nor to the ultra vieres liability and to the solidarity of those called to the inheritance when there are several of them.

Another very common example of tacit acceptance admitted by the Jurisprudence is the filing of lawsuits on some property of the inheritance (Provincial Court of Valencia in Judgment No. 32/2020 of February 12, 2020). Or, to appear in a lawsuit initiated by the deceased assuming his procedural position. (STS June 27, 2000 and SAP Baleares of January 22, 2008).

Although there is no closed list of acts that imply a tacit acceptance of the inheritance, we would like to highlight one last example. And it is the one decreed by the High Court already in its Decision of November 24, 1992. It establishes that the challenge of the validity of the will by the person who has been excluded from the inheritance implies tacit acceptance.

From all this, we can extract the need to be careful with our acts if we do not want to accept an inheritance. Otherwise, it could be understood that we have accepted the inheritance and with it, the assumption of its debts and responsibilities with our patrimony.

Conclusions

There are two forms of acceptance of inheritance: pure and simple or with benefit of inventory.

The pure and simple acceptance may be express, by means of a public or private document. Or tacit, by means of the realization of unequivocal acts of will to inherit.

The tacit acceptance is defined in our Civil Code. And it also includes the cases of concurrence.

Nevertheless, the Jurisprudence says that there is not a closed list of assumptions. And that, in short, it can be any act with the intention of making the inheritance his/her own.

It is indifferent whether or not there is partition and division of the inheritance, since this is not an obstacle to the quality of Heir. Therefore, it will not be possible to oppose lack of legal standing if the concurrence of an unequivocal act of will to inherit is accredited.

So, it is necessary to be very careful with our acts to avoid unpleasant surprises.

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