Abstract
The rules that in the civil legal systems regulate the succession upon death, highlight the conception that every legal text has about individual freedom, and also about the family. The variety of Spanish civil laws includes very different systems on the compulsory portion. And this shows up (because of that), that variety of conceptions. This paper analyzes the disinheritance as an exercise of the testamentary freedom to deprive the compulsory portion to certain relatives. The research aim is to show the differences and the common points between Spanish civil laws and to propose some legal reforms. The research method used consists on the analysis of the most relevant statistics about the Spanish population and on the most frequent decisions of the elderly regarding their descendant’s inheritance. Also, last year main judicial decisions and the authors’ opinions have been analyzed.
Highlights
Time and again, when writing about inheritance law and testamentary freedom, we must refer to the current social reality, to the historical moment in which we are assessing the efficiency of the various laws in force on the matter
The rules that in the civil legal systems regulate the succession upon death, highlight the conception that every legal text has about individual freedom, and about the family
This paper analyzes the disinheritance as an exercise of the testamentary freedom to deprive the compulsory portion to certain relatives
Summary
Time and again, when writing about inheritance law and testamentary freedom, we must refer to the current social reality, to the historical moment in which we are assessing the efficiency of the various laws in force on the matter. In cases of disinheritance with just cause, this is what occurs in relation to the legal limits concerning the cause for the disinheritance and the procedure to be followed first by the testator and by the heir should the person entitled to a legitime file a judicial claim Were it to result in the dooming of the disinherited legitimary to a situation of economic necessity, in individual compulsory share systems such a circumstance would not trigger any type of solidarity mechanism that would result in the use of the decedent’s estate to address that situation of need. If the compulsory share continues to be based on the legitimary’s sacred right on the grounds of his or her family ties to the decedent, how can the rule be interpreted and applied coherently in cases of disinheritance? Has a solution really been achieved for the case of a testator who does not want, for founded reasons, to be bound by the legal require met to attribute some of his or her estate to some of the relatives entitled to a legitime?
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