The Foundations of the Unworthy Heir Rule in Romania

Abstract

Within the Civilian legal tradition, the unworthy heir rule has been established on both objective and subjective grounds. In France, the Code Napoleon enshrined said rule as a creation of law, without the deceased having any say in its operation. The Napoleonic model was later borrowed into the civil codes of Italy and Romania, thus expanding the doctrine of an objective unworthiness to their legal systems. Nevertheless, the Romanian Civil Code of 2009 empowered the deceased to remove said penalty through an explicit pardon. Since this new prerogative is a distinctive feature of the subjective foundation, the reform has rather significant implications for Romanian succession law. Essentially, the authors argue that the unworthy heir rule has always been founded upon a mixture of public policy and private interest, with the only variable being the dominating factor. Within the broader field of succession law, the legislator aims to achieve balance between the imperative nature of public policy and freedom of testation on the one hand, and between the private interests of the deceased and his family on the other. Whilst the Civil Code of 2009 does restore the Roman notion of an unworthiness subordinated to the deceased’s intention, it also preserves the public policy foundation. Its real merit consists of acknowledging that the very concept of inheritance is based upon the presumed intention of the deceased: an unworthy heir forfeits his right to inherit the deceased as a result of breaching the bond of affection which is presumed to exist between them, yet only the latter can have the final say in this matter. In contrast, the Civil Code of 1864 failed to achieve such a balance since it transplanted an ideologized public policy, residue of the French Revolution.