Inheritances: the problem of leaving money to a minor child after a divorce

A divorce can have unforeseen consequences even in death.

Thomas Osborne
Thomas Osborne
02 February 2023 Thursday 23:47
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Inheritances: the problem of leaving money to a minor child after a divorce

A divorce can have unforeseen consequences even in death. In the case of broken marriages with children involved, the death and distribution of the inheritance can be complicated if you do not want the ex-spouse to touch the inheritance.

In a common case, if the father or mother of a minor dies, the other will exercise parental authority and administer the assets. The problem can arise when the couple is separated. Sometimes there are situations in which "due to mistrust in the ex-partner, they do not want them to manage the assets," explains Fátima Galisteo, a lawyer specializing in inheritance at the Madrid firm Galisteo Abogados. Can it be achieved?

The simple wish is not worth. For this will to be fulfilled, a will must be made, something not so common at an early age in which death is something more sudden -such as a traffic accident- than natural -due to old age-. "And that he expressly mention it. If a will is not made, there will be a declaration of heirs," says Galisteo, so the will would not be fulfilled and there would be a clash of wills.

Hence, it is recommended to assess making a will after a divorce if you want to break any relationship with your ex-spouse. By specifying in a will that they do not want to manage the inheritance, the ex-partner will perform the powers of parental authority (procure their education, residence, health...) and will be left out of the administration of the inherited assets.

An estate administrator will take his place, "an interesting figure but not yet too common in wills for divorced people with minor children." He is usually someone close to the family and young, like a brother or a trusted friend. "They cannot make any provision, they can only administer in accordance with the instructions of the testator. In practice, they accept the inheritance on behalf of the minor and manage it, such as the collection of rent for an inherited apartment." There is no charge for this management, as an executor would do.

"The administrator does and undoes, but there has to be judicial control, he has to ask the judge for authorization, in cases of extraordinary administration," such as the sale of an inheritance property.

The administration is temporary, until the age of majority or the emancipation of the minor. For it, a performance of accounts can be demanded. Thus, when the heir turns 18, he has a period of 3 years to file a claim if he believes that the management has not been ideal. "If it is shown that the mismanagement has been malicious intentionally, if a crime is derived from it, it could go through criminal proceedings," says the lawyer.