Is it possible to challenge the partition of an estate?

Question

José Manuel Alburquerque · Accepted Answer

Yes, but only on specific grounds, because the partition, which is the division of the estate, gives each heir exclusive ownership of what is allocated to them. In Catalonia it can be rescinded, that is, set aside, if an heir received less than half of what they were entitled to according to their share, at the values on the day of the division. There are four years from the partition to apply and the other heirs can prevent rescission by paying the heir the difference in money. It can also be annulled if someone signed it as a result of a mistake, deception or threats. If an asset or an heir was left out, it is not normally annulled but completed or corrected. Rescission on grounds of loss (“rescisión por lesión”) The “Código Civil de Cataluña”, the Catalan Civil Code, allows the partition to be rescinded on grounds of loss, which is the harm an heir suffers when the division leaves them far below what they were due. These are the rules: What was allocated to the heir must be worth less than half of what they were entitled to according to their share of the estate. The assets are valued at what they were worth on the day they were allocated, not at what they are worth today. There are four years from the date of the partition. It is a time bar (“caducidad”), so it is not stopped by a simple letter of claim. The safe course is to bring the claim before it expires, leaving time for the attempt to reach an agreement that the law generally requires. The claim is brought against all the other heirs. The defendants can avoid rescission by paying the injured party the difference in money, with interest from the date of the partition. A division made by the deceased themselves, normally in their will, cannot be rescinded on grounds of loss, unless they said otherwise or a contrary intention can clearly be inferred. For example, an heir is entitled to one third of an estate of 300.000 euros, that is, 100.000 euros. If they were allocated assets worth 45.000, they can seek rescission. If those assets were worth 60.000, they cannot. In most of the rest of Spain it is enough for the loss to exceed one quarter of what the heir was entitled to, also within four years of the partition. Other defects in the division For other problems, the law provides different solutions, which do not always involve undoing the division: If an heir signed the division as a result of a serious mistake, deception or threats, they can ask for it to be annulled, like any other agreement. They generally have four years from the division or, if there were threats, from when the threats ceased. If an asset was left out, the division is not undone. It is completed by adding that asset. If an heir was unintentionally left out, the others must pay them the share proportionally due to them. If someone who was not in fact an heir took part, what was allocated to them passes, in principle, to the other heirs according to their shares. A majority of them, by value of their shares, can agree that the division should be done again. If the division was made by an executor or an estate partitioner (“contador partidor”) appointed in the will, they must follow the rules of the will and of the law. If they depart from them, the division can be challenged. Before challenging it Challenging the division is not the same as challenging the will, which is a separate matter. Before suing, the law generally requires an attempt to reach an agreement. In rescission on grounds of loss, the agreement usually consists of paying the difference to the injured heir. It is advisable to commission, early on, a valuation of what the assets were worth on the day of the division, which is the evidence that decides the rescission. And the four years must not be allowed to pass. If the division was made in court proceedings and the judge decided an objection, the judgment does not prevent the rights over the allocated assets from being disputed later in ordinary proceedings (“juicio ordinario”).