When parents make a donation in life to one of the children, it must be taken into account that, after their death, when making the distribution of the deceased of the deceased, this can make the beneficiary of it receive less than expected because it counts as part of the inheritance. Is what is known as collation of goodsa way of protecting the legitimate part of forced heirs, and that can generate certain conflicts between the brothers.
It is just what has happened with the donation of 40,172.94 euros that parents made in life one of their children and that, after the death of both, the rest of Forced heirs (The other 3 children) demanded that the hereditary dough be added and distributed among all. For his part, the son who received the donation argued that it was not necessary because the writing did not force it to collation, that is, to include it as part of the inheritance.
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The Court of First Instance and Instruction No. 2 of Quintanar of the Order in its May 2025 judgment has proved the brothers who demanded their part and forces the more than 40,000 received as a donation to compute for inheritance.
If not expressly indicated, the donation made in life to one of the children is part of the inheritance
The court justifies his decision based on several key articles of the Civil Code. On the one hand, article 1035 CC establishes that “the children and descendants who attend the inheritance of their parents must bring to the hereditary mass everything they have received from them by donation inter vivos, unless the donor arranged otherwise”, and article 1036 CC concrete that the dispensation of collation, that is, that the donation does not count as part of the inheritance, “it must be done expressly and can not expressly ever presume. ”
In this case, the judge indicates that the 2012 public deed of the donation does not collect any formal dispensation, and, therefore, the general rule of collation must be applied.
The sentence emphasizes that the purpose of these norms is the protection of the legitimate, to ensure that all children receive what legally correspond to them and prevent one from obtaining an extra benefit through undercover donations.
The ruling also relies on the jurisprudence of the Supreme Court, which insists that the protection of the legitimate is a basic principle of the right of successions, and that only an express dispensation allows to exclude a donation from the general cast. The court adds that interpreting the will of the parents against the collation, without formal mention in the writing, would go against the rights of the other heirs and open the door to possible fraud.
The sentence explains that the heir who received the donation “cannot keep that amount outside the general cast”, and that only a clear and formal will of the parents could alter that rule. In this way, Justice forces, therefore, that the donation of 40,172.94 euros “is brought to inheritance.”
Despite this, the ruling could be appealed to the Provincial Court of Toledo.