Discriminatory testamentary clauses, applicable law and limits of Spanish public policy.
In successions with an international element, foreign wills or inheritance titles sometimes appear that include terms o distribution criteria difficult to reconcile with the constitutional and European standard of equality: "only those who maintain my religion will inherit", "if my child lives with a person of the same sex they lose the inheritance", or clauses that penalize someone for their sex, convictions or sexual orientation.
In these cases the question is not moral, it is strictly legal: Can Spain prevent that clause from having effect here, even if the law applicable to the succession would tolerate it?
The answer is Yes, but with caution..
Spanish law and EU law provide for an exceptional valve —the public order— which allows delete the application of a foreign standard or denying effectiveness to a successive result when it is manifestly incompatible with the essential principles of the forum.
In the European context, the basis is found in Article 35 of the Regulation (EU) 650/2012.
The starting point: in Spain, discriminatory conditions are not enforced.
In Spanish inheritance law, the classic mechanism for expelling unacceptable clauses is in the art. 792 of the Civil Code according to which “Impossible conditions and those contrary to the law or good morals” will be considered as not having been placed y will not harm to the heir or legatee.”
This rule does not, by itself, "resolve" all international conflicts, but it does establish a basic interpretative criterion: when a will incorporates a condition that directly clashes with the legal system, the tendency is to save the legal inheritance transaction and expel the invalid clause from it.
Added to this is the constitutional framework: The art. 14 CE It proclaims equality and the prohibition of discrimination on grounds such as sex or religion (and, in general, on any personal or social condition), while the art. 10.1 CE It proclaims the dignity of the person and the free development of the personality. “as the foundation of political order and social peace.”
What changes when the succession is international: the role of “public order”
In international matters, the question is not only whether a condition is invalid under Spanish law, but whether Spain should give effect to that condition protected by the foreign law applicable to the succession.
This is where the concept comes in. of international public order: a set of essential principles that the forum is not willing to sacrifice, even when foreign law must be applied to the succession.
In Spain, Article 12.3 of the Civil Code is unequivocal: “Foreign law shall not apply in any case when it is contrary to public order.”
From the perspective of Community law, Article 35 of Regulation 650/2012 allows the exclusion of the application of a provision of the designated law if its application is manifestly incompatible with the public policy of the forum.
A paradigmatic case: inheritance “with quotas by sex” and the Spanish Registry
The Resolution of the Directorate General of Registries and Notaries of July 20, 2016 (now DGSJFP) is an essential reference.
In her The discussion centered on an inheritance allocation based on a rule of Iranian law whereby the son received twice as much as the daughter.
The registrar refused registration because he understood that this distribution violated Spanish international public policy, and the Directorate General confirmed that a rule with discriminatory effects on the grounds of sex cannot be recognized as effective in Spain.
This type of resolution matters because two practical reasons:
- It shows that the issue is not limited to the academic sphere: the filter is applied in notaries and the Registry, that is, in the place where the citizen needs to "make effective" the inheritance right.
- The approach is clear: it is not about judging cultures or systems, but about deciding whether the result can have effects in Spain when it contradicts an essential principle of our system.
"Does the clause fall, or does the entire will fall?"
One of the most useful questions for the non-legal reader is the following: If a will has a discriminatory clause, is the entire will voided?
The general rule in our system is conservative: Anything contrary to public order is expelled, and an attempt is made to save the rest..
The very structure of article 792 of the Civil Code leads to that idea: the condition contrary to law or good morals is considered not to have been set and does not prejudice the heir or legatee.
However, there is a crucial nuance: if the will itself shows that the testator's intention was inseparable from the condition contrary to public policy, then It can be argued whether what remains after leaving out the clause is still enforceable as the testator intended.
That hypothesis exists, but it is exceptional and is interpreted restrictively so as not to invalidate the will completely without a clear reason.
The control of the notary and the registrar: why the conflict arises at the end
In international inheritances, many families arrive with seemingly impeccable documentation: foreign succession certificate, notarized deed from the country of origin, translations, apostilles.
However, the problem of discriminatory clauses contrary to public policy usually emerges in the final stage: when attempting to formalize the award, sell a property or register it.
A double control system operates here.
The notary, by authorizing a deed of adjudication, and the registerWhen qualifying for registration, they must verify that the title does not intend to produce effects contrary to Spanish law.
Administrative doctrine has insisted that clauses contrary to fundamental rights, such as equality, cannot produce effects and must be considered null or ineffective in their application.
This approach also helps to clear up a common misconception: it is not the same to "give more to one than to another" as to condition or deprive for reasons prohibited by public order.
The freedom to make a will allows for preferences, even severe ones, within the limits of the legal share and other rules;
What triggers public order is the use of discriminatory criteria (sex, religion, sexual orientation) as a legal lever to exclude or degrade.
Conclusion: a will "rules," but not at any price.
In Spain, A testamentary clause that discriminates on the basis of religion, sex, gender, or sexual orientation has very limited legal recourse: Internal law rejects it as a condition contrary to the legal order, considering it as not included in the will.
When The succession is international and the applicable foreign law would tolerate it; the system is not left disarmed.: international public order —in particular, the exception in Article 35 of Regulation 650 / 2012— allows preventing that discrimination from having effects in Spain, especially when it is intended to register assets or formalize awards here.
And, perhaps most relevant for those seeking a practical solution: the normal thing is not that "the whole will falls apart", but that the clause is excluded and the rest of the will remains in force as far as possible, unless it is proven that the testator conditioned the entire succession scheme on that discriminatory provision.
RRYP Global, Lawyers specializing in inheritance and international succession law in Spain.
