Preterition is the total omission of a compulsory heir in the direct line from a will, whether the heir is not named, not instituted, and not expressly disinherited. Under Article 854 of the Civil Code, preterition annuls the institution of heirs, so the omitted heir shares in the estate as if there were no will, but valid legacies and devises are respected as long as they do not impair the legitime. It differs sharply from disinheritance, which is a valid, deliberate exclusion for a legal cause stated in the will; preterition is an unintentional or defective omission with drastic effects.
A parent makes a will leaving everything to some children and, deliberately or by oversight, says nothing at all about another child. That silence can have a drastic legal effect: preterition.
What Preterition Is
Preterition, under Article 854, is the total omission of a compulsory heir in the direct line from the will. “Total omission” means the heir is:
- Not instituted as an heir (given nothing in the will);
- Not expressly disinherited (the will does not disinherit them for a legal cause); and
- Received nothing by way of legacy, devise, or advance on their inheritance.
It applies to a compulsory heir in the direct line — a child or descendant, or a parent or ascendant — who is completely left out, as if they did not exist in the will.
The Drastic Effect
This is what makes preterition remarkable. Article 854 provides that preterition shall annul the institution of heirs. In effect, the disposition of the estate to the named heirs is voided, and the estate is distributed as if the person died without a will (intestate) — so the omitted heir, and all the compulsory heirs, take their legal shares. One overlooked child can thus undo the entire distribution the testator intended.
Two things survive: legacies and devises (specific gifts to particular persons) remain valid insofar as they do not impair the legitime. So the general institution of heirs falls, but valid specific gifts (within the free portion) are respected.
Preterition vs. Disinheritance
The contrast is important:
- Disinheritance is a deliberate, valid exclusion of a compulsory heir for a legal cause expressly stated in the will. Done correctly, it validly deprives the heir of their legitime.
- Preterition is a total omission — the heir is simply left out, not validly disinherited. It annuls the institution of heirs.
An ineffective or invalid disinheritance (for example, disinheriting without a legal cause or without stating it) is treated like preterition to the extent it prejudices the legitime — the disposition is annulled to give the heir their legitime.
When It Is NOT Preterition
If the omitted heir received something — a legacy, a devise, or a lifetime donation treated as an advance on their legitime — there is generally no preterition, even if what they got is less than their legitime. In that case the remedy is completion of the legitime (the heir demands the shortfall), not the annulment of the institution of heirs. So giving the heir even a little avoids the drastic effect of preterition, converting it into a mere claim to complete the legitime.
Practical Advice
- When making a will, do not completely omit a compulsory heir in the direct line — either provide for them (at least their legitime) or, if you have a legal cause, expressly and properly disinherit them. A silent omission can void your whole distribution.
- If you were left out of a parent’s will entirely, preterition may annul the institution of heirs and let you inherit as in intestacy — have the will examined.
- Because the effects are severe and technical, wills should be drafted carefully to account for every compulsory heir.
Frequently Asked Questions
What is preterition? The total omission of a compulsory heir in the direct line from a will, where the heir is not instituted, not expressly disinherited, and received nothing. Under Article 854 it annuls the institution of heirs.
What happens if a compulsory heir is completely left out? Preterition annuls the institution of heirs, so the estate is distributed as if there were no will, and the omitted heir takes their legal share. Valid legacies and devises survive if they do not impair the legitime.
How is preterition different from disinheritance? Disinheritance is a deliberate, valid exclusion for a legal cause stated in the will. Preterition is a total omission that annuls the institution of heirs. An invalid disinheritance is treated like preterition to the extent it prejudices the legitime.
Is it preterition if the heir got a small gift? Generally no. If the omitted heir received a legacy, devise, or a lifetime advance, there is no preterition even if it is less than their legitime; the remedy is to complete the legitime, not to annul the institution of heirs.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If a will left out a compulsory heir, or you are drafting one, our firm can protect against preterition. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.