Short answer. For most grounds of unworthiness, a court declaration is required — the exclusion is not automatic. Article 1034 specifies that for several grounds listed in Article 1032, the exclusion takes effect only after a final court judgment. You cannot simply refuse to include an heir in the settlement without that legal determination.
What the law says
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment is rendered
Civil Code, Article 1034 — When Capacity Is Judged. Read the full provision →
Capacity to succeed is assessed at the time of death
Article 1034 establishes the starting point: the heir's capacity is judged as of the moment the decedent died — not before, not after. If the basis for unworthiness arose after death, it generally cannot be used to exclude the heir. If it arose before death but the decedent later forgave the heir or condoned the act, that may also affect the exclusion. The snapshot in time is the death of the decedent.
When a court judgment is required
For several grounds listed in Article 1032, the exclusion does not happen automatically. Article 1034 is explicit: when the ground falls under numbers 2, 3, or 5 of Article 1032 — which involve criminal convictions for attempts on the testator's life, filing a groundless accusation, or conviction for adultery or concubinage with the testator's spouse — the exclusion takes effect only after a final court judgment. This means you must wait for the criminal case to conclude with a conviction before the heir can be treated as excluded on those grounds. You cannot remove them from the estate while the case is still pending.
The action to declare incapacity has a five-year window
Article 1040 sets a prescription period: the action to formally declare an heir incapable and recover the inheritance from them must be filed within five years from the time the disqualified person took possession of the inheritance, devise, or legacy. After five years, the right to challenge lapses. Any co-heir or person with an interest in the succession may bring this action — it is not limited to one particular heir. If an unworthy heir has already received their share and is managing the property, the five-year clock is running.
Practical reality: do not exclude informally
Because the law requires a judicial declaration for most grounds of unworthiness, excluding a potentially unworthy heir from an extrajudicial settlement without that court order is risky. The excluded heir could challenge the settlement later and argue they were improperly cut out. If you have reason to believe an heir is unworthy to succeed — particularly under a ground that requires a final judgment — the proper path is to proceed with the settlement while the legal question is resolved separately, or to file the appropriate action before the settlement is finalized. Informally refusing to recognize an heir does not create the legal exclusion the Civil Code requires.