Can An Unborn Baby Inherit?

The inheritance is defined as the legal act through which a person, upon death, transfers their assets, rights and also obligations (that is, their debts) to others. Those who receive the inheritance are the heirs.

The legal regime that regulates inheritances is inheritance law within the framework of civil law. Thus, the rules on inheritance may change depending on the regulation of the country in which we are located.

In principle, whoever makes a will – the testator – may have freely designated whoever he or she wishes as heir. The heirs, in turn, can be individuals or even legal entities (for example, it is possible to leave an inheritance to an NGO). But this has a limit; In addition to whoever the testator wishes, there are forced heirs designated by law.

These people will necessarily inherit at least a part of the inheritance. In any case, when establishing in the will who will be the heir, could a baby that has not yet been born be used? Next, we see what the law says in these cases.

Who can inherit?

In inheritance law it is important to keep in mind the concept of forced heir. This is because, regardless of the wishes of the testator, his forced heirs cannot be excluded from the inheritance in any case.

The law attributes to them a part of the inheritance of which the testator himself cannot deprive them. This is what is called “the legitimate”. The forced heirs are:

• The children.
• If there are no descendants, they are the parents.
• The widower or widow.

Thus, according to our legislation, if there are children, they will always inherit at least the part of the legitimate inheritance that corresponds to them. If there were no children, the parents would inherit it. And in any case the widowed spouse also inherits a part.

Would you have the right to inherit an unborn baby?

As we mentioned earlier, children not only have the right to inherit, but the law mandatorily grants them a percentage of the inheritance. The problem arises when the child has not yet been born, in this case there are some limitations.

It is important to understand that, legally, someone who has not been born cannot be considered a person. In civil law, to be a person it is necessary to have been born and also to have survived the separation from the mother – at least for an instant.

Despite this, even if they have not yet been born and therefore are not considered a person for legal purposes, the unborn does enjoy rights. These are expressed in the Civil Code (CC), a regulation that in this sense is very important. That is, even if the baby is not considered a person by civil law, it is a living being, so its rights must be protected.

Specifically, article 91 CC protects the life of the unborn. It is said that your life must be protected through whatever ways are necessary. In this way, it is possible that a Judge will order measures to be taken to protect the life of the baby if it is in danger.

In fact, by law, not only is the life of the unborn protected, its rights are also protected, including that of inheritance. Thus, a baby that has not yet been born does have the right to inherit, but this right is conditional. That is, certain conditions must be met for the baby to inherit.

In order for an unborn baby to inherit, in the first place, it must be considered a person and therefore must be born alive and survive the separation from the mother for at least an instant.

If the requirements are not met and, for example, the baby is stillborn, it would be considered that it has not legally come into existence. In this way, until it is born, the inheritance is suspended pending the fulfillment of these conditions or not. If they are fulfilled, the newborn becomes an heir; if not, the inheritance is distributed among the corresponding heirs, as if the baby had never existed.

Can you deny inheritance to a person?

Initially, all those who are not expressly incapacitated by law or sentence can be heirs . In the same way, with the exception of the forced ones, those whom the testator chooses will inherit exclusively.

On the other hand, what do exist are some limitations that prevent becoming the heir of certain people. Thus, normally – and with some exceptions – they cannot inherit the testator:

• The priest who would have confessed him in his last illness.
• Your guardian or conservator.
• The notary who has authorized the will. Neither does the notary’s spouse or their relatives within the fourth degree. This is so except if the inheritance is personal property or amounts of little importance in relation to the inheritance.
• The witnesses of the open will, executed with or without a notary.
• The people before whom special wills are granted.

It must be borne in mind that, in any case, it is a matter of complying with the will of the person regarding their assets.