885/2023 ruling of the Second Chamber of the Spanish Supreme Court, issued on November 29th, was the outcome of an interesting cassation appeal for alleged infringement of the law. The appellant, Ms J, had been convicted of misappropriation of assets from her brother’s estate. After his death, she made several withdrawals totalling 57,850 euros. At that time, the son and sole heir of the deceased had not yet accepted the inheritance, and was therefore in a situation legally known as “herencia yacente” (inheritance in abeyance), in which there is, temporarily, no definite owner for the rights and assets that belonged to the deceased.
Ms J’s defence claimed that the “acquittal rule” contained in section 268 of the Spanish Criminal Code should be applied. This rule exempts from criminal liability in certain property crimes (without violence nor intimidation) between close family members. Furthermore, Ms J’s defence argued that, as the deceased’s son had not accepted this father’s inheritance, in the event that he rejected it, the deceased’s mother or even Ms J herself could be the heirs.
The appeal was dismissed, the judgement concluding that:
a) It makes no sense whatsoever to try to apply the acquittal rule in art. 268 of the Criminal Code to facts that took place after the death of the deceased. The purpose of the rule is not to punish certain patrimonial crimes between close relatives, in which civil reparation is sufficient to resolve the conflict without the need for a criminal sanction. But after the death of the owner of the property, this justification disappears, since the damage caused no longer affects the property of the deceased, but rather the “inheritance in abeyance”.
b) Regardless of who finally becomes the owner of these assets, as long as formal acceptance has not taken place, the estate has an autonomous legal existence, even if it temporarily lacks a specific owner. The “inheritance in abeyance”, therefore, must receive the legal protection that corresponds to the right to property, and any damage caused to it deserves punishment.
Consequently, the appeal was dismissed and the judgement convicting Ms J for the crime of misappropriation became final. However, the Supreme Court itself indicated that if in the future any heir accepted the inheritance in conditions that would have allowed the acquittal rule to be applied, Ms J could file an extraordinary appeal for review against her sentence, in accordance with Article 954.1 d) of the Spanish Criminal Procedure Act.
Rulings such as this one reinforce the importance of protecting the “inheritance in abeyance” estate, and make it clear that the acquittal rule of art. 268 of the Criminal Code is not applicable when the misappropriation occurs after the death of the deceased.
