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The notion of partible inheritance and its judicial characters.

Testamentary freedom is carried out within the limits foreseen by the law, where the most important is the one regarding partible inheritance. This involves the fact that there is a certain category of legals heirs of the defunct, named the heirs who are entitled to a portion of an inheritance (formed of succession of the disposer, his parents and the surviving spouse) that the law protects against the gifts in excess of the freely disposable portion of an estate carried out by the defunct through acts mortis causa or inter vivos, as well as against disinheritances made through the will. This part from the inheritance, that belongs to the heirs who are entitled to a portion of an inheritance according to the law, is named partible inheritance. What overtakes the partible inheritance is the disposable portion of an estate, that is the portion from the inheritance that the testate can freely dispose of.

The acts for good and valuable consideration as well those for gratuitous use that are not gifts, but simple disinterested acts (for example the commodate), are not restrained by law,because they do not decrease the inheritance, of course in the measure that these acts are not disguised donations for which the law presents limits.

But if the testate does not have heirs who are entitled to a portion of an inheritance, he could freely dispose of his inheritance either through documents with gratuitous use, or through documents for good and valuable consideration.

1. Concept. Law does not define partible inheritance, but it determines, in an indirect way, in relation with the number and quality of heirs who are entitled to a portion of an estate, that is the portion from the inheritance that represents the partible inheritance, specifying what is the disposable portion of the estate that the testate can freely dispose of.

We can define partible inheritance as being that portion from the inheritance that is proper to the heirs who are entitled to a portion of an estate in accordance with the law and the person that leaves the inheritance cannot dispose of through gifts inter vivos (donations) or through testamentary dispositions causa mortis (related to disinheritance) (1).

Partible inheritance was defined in the New Civil Code as being the "portion from the goods of the inheritance that the heirs who are entitled to a portion of an inheritance have the right in virtue of the law, even if against the wish of the defunct, asserted through gifts and disinheritances" (art. 1086).

Disposable portion represents that portion of the inheritance de cujus that exceeds to the partible inheritance and that the defunct can freely dispose of, including donations, legacy and disinheritances.

The New Civil Code defines in article 1089 the disposable portion as being "portion from the goods of the inheritance that is not reserved by law and the defunct can dispose of with no restraints, including through gifts".

Therefore, if the testate has heirs who are entitled to a portion of an inheritance, the property inheritance divides in two parts: the partible inheritance and disposable portion. This division takes place in case if the defunct did not leave a will, but he made donations during his life, this will be verified if that through the donations that he made he did not change the heirship that is appropriate to the heirs who are entitled to a portion of an inheritance.

We can observe that if the disposer has heirs who are entitled to a portion of an inheritance, the inheritance being only partially testimantary, because the heirs who are entitled to a portion of an inheritance will take the inheritance according to the law, and the legatees will receive inheritance in accordance with the wish of the disposer, taking their legacies only in the extent of disposable portion (2). Therefore, the partible inheritance represents a portion of the inheritance ab intestat.

The institution of the partible inheritance is made on consideration of moral and social character. Therefore, the disposer cannot disinherit his child (only in the limit of disposable portion of an estate), and he cannot leave his parents, who are in general old, in the impossibility to earn their life, with no kind of help, after his death.

The partible inheritance of the surviving spouse, set up by Law no. 319/1944 is drawn up on duties of mutual support that exist during marriage.

As it was stated, "the limits of disposing in a free way represents a protection for the sufferings and human actions that could compromise, through the disinheritance of the children, the force and family balance" (3).

Partible inheritance ensures a certain balance between the heirs who are entitled to a portion of an inheritance, and in the extent that the disposer prefers a certain succession or wants to help him because he has a poor material situation (because of an accident, of a disease, dependants, etc.) will not be able to do it but by gratifying him in the limits of disposable portion of estate (4).

2. Judicial aspects of partible inheritance. In Roman law the partible inheritance was considered a pars bonorum and not a pars hereditatis, the heir who is entitled to a portion of an inheritance can choose the partible inheritance even if he renounces to the inheritance. Therefore, the partible inheritance appears as a claim of the heirs who are entitled to a portion of an inheritance against the inheritance that has the object the goods that the defunct disposes of through donations or legacies, with prejudice to their legitimate portion.

This conception was adopted by the old Romanian Law, but the Civil Code from 1864 adopted the view that partible inheritance represents a part of the inheritance ab intestat.

Therefore, partible inheritance presents the following characteristics:

a) Partible inheritance is a part of inheritance (pars hereditatis) that will be assigned to the heirs who are entitled to a portion of an inheritance according to the law and against the testate's wish. Taking into account the fact that the partible inheritance defends the heirs who are entitled to a portion of an inheritance not only against testamentary provisions causa mortis (legacy and disinheritance) that the disposer can do, but also against the donations that he made during his life, to the estate that will be calculated the partable inheritance there will also be brought the donations. Therefore, the partible inheritance is a part of the inheritance that the defunct would have let if he had not made donations (5).

As the partiable inheritance is a part of inheritance ab intestat, in order to take the partible inheritance, the heirs who are entitled to a portion of an inheritance must come effectively to the inheritance. Therefore:

1) the heirs who are entitled to a portion of an inheritance must have a testamentary capacity, that is to exist or to be conceived the moment of the opening of the inheritance;

2) the heirs who are entitled to a portion of an inheritance must have concrete vocation to inherit, that is to be called in useful quality to the inheritance, in accordance with the class of heirs they are part of and the relationship within this class. For example, the privileged ascending line relatives do not have the right to partible inheritance if the testate has children that can and want to come to the inheritance (class I of succession eliminates IInd class of privileged ascending line relatives, in accordance with the principles of legal transmission of rights of the inheritance);

3) in order to receive the partible inheritance, the heirs who are entitled to a portion of an inheritance cannot be unfair or cannot renounce, because indignity or renunciation acts with a retroactive effect, the heir not being considered entitled to receive the inheritance, he has no longer the right on the partible inheritance that is a part of the inheritance (6).

Within the term of optional inheritance of 6 months, the heirs who are entitled to a portion of an inheritance who renounced to their inheritance can recall it, and in this case they acquire again the right of partible inheritance, without changing the rights acquired on the goods of the inheritance by third persons (article 701 Civil Code).

Acceptance can be pure and simple under the benefit of inventory and therefore, the heirs who are entitled to a portion of an inheritance will be obliged to pay the debts of the inheritance ultra vires hereditatis or, if the case, intra vires hereditatis.

b) Imperative character of the partible inheritance. The provisions of the law concerning the partible inheritance have an imperative character in order that they cannot be modified by the wish of the disposer, even if the heirs who are entitled to a portion of an inheritance agree with these modifications. Therefore there will be void every provisions, charges, conditions, claims that would violate the rights of the heirs who are entitled to a portion of an inheritance (7).

Therefore, the fact that the testamentary heir mentions in the conclusion of the disposer's will that he agrees with all the gifts that he made him, even if they break the partible inheritance, it will represent a pact on the future inheritance, stopped by the law.

After opening of the inheritance, the heirs can renounce in a valid way to the inheritance and, implicitly, to the partible inheritance. As well they can choose the way of division of inherited goods through mutual agreement, through the inherited notarial procedure or through another legal form, in accordance with article 81 par. 3 from Law no. 36/1995 (8) regarding public notaries and notarial activity.

c) Individual character of the right of partible inheritance. Partible inheritance is given to the heirs who are entitled to a portion of an inheritance in accordance with the law and against the wish of the disposer so that the succession, the parents and the surviving spouse are not inheritors in law towards the document for gratuitous use that were signed by the defunct and through which their right to partible inheritance is not prejudiced. Towards these documents they have the quality of third persons, not being enforceable. Concerning the documents for good and valuable consideration as well the gifts that are only disinterested acts, the heirs who are entitled to a portion of an inheritance have the quality of heirs at law, these acts being enforceable (9).

d) The right of partible inheritance inkind. Taking into consideration that the heir who is entitled to a portion of an inheritance is not a creditor of the inherance, but a legal heir, he will have the right to take in-kind the goods that are part of the defunct's inheritance (including those goods that were part from this inheritance if the defunct would not have made donations) (10).

If through gifts inter vivos or mortis causa (or through disinheritances) with prejudice to partible inheritance, it will be operated the reduction of gifts, the goods being given to the heirs who are entitled to a portion of an inheritance, who will not be obliged to accept their value exchange, neither if the testate would do it in another way.

If only a part of the legacy or donation is detrimental to the partible inheritance, the reduction will operate in a partial way, and the gratified persons will be impartible with the heirs who are entitled to a portion of an inheritance. If the defunct anticipated this, he will not be able to dispose of the auction sale of the real estate for recovering the partible inheritance from the price obtained (11).

Only if the heir who is entitled to a portion of an inheritance accepts or in the cases foreseen by law, the partible inheritance can be given or reunited by the value exchange of the good (for example, if the good granted was alienated by the donor before the opening of the inheritance.

We state the fact that, if the disposer does not have the possibility to dispose in a free way of his fortune, if he has heirs who are entitled to a portion of an inheritance, it is specified this, the testate has the freedom to decide what are the goods that will form the partible inheritance, because the law recognizes a certain quota from each category of goods that belong to the heirs. It will therefore be available the provision of the will through which the testate gratifies of any connections with the existing real estates from his inheritance, as long as these gifts are without prejudice to the partible inheritance that will only be formed of securities.

e) Collective aspect of the partible inheritance. Law sets the partible inheritance in indirect way, by showing the disposable portion of the estate, the remaining goods are assigned with titles of the partible inheritance, impartible, to the heirs who are entitled to a portion of an inheritance. Therefore, excepting the partible inheritance of the surviving spouse that is always given in an individual way, even if it comes competing with heirs who are entitled to a portion of an inheritance, the partible inheritance that is inhered to the succession or privileged ascending line relatives, has a collective aspect, representing a mass of goods appealed by law to some groups of heirs (12).

The extension of the partible inheritance will be established in accordance with the heirs who are entitled to a portion of an inheritance that come effectively to the inheritance, not being unworthy or renouncers. For example, if the defunct has three children, but there are only two that can and wish to come to the inheritance, their partible inheritance will be of 2/3 from the inheritance (calculated in accordance with the children that effectively would have come to the inheritance) and not 3/4 from the inheritance (as in the case that would have come to the inheritance all the three children).

f) Unavailability of the partible inheritance. In specialty literature (13) it was also held the unavailable aspect of the partible inheritance, appreciating that the unavailability is on the one side, relative (because of the gifts made by the defunct are not conformed to the reduction only in the case there are heirs who are entitled to a portion of an inheritance) and on the other side, partial (because it aims only gifts, not the acts for good and valuable consideration, but as well it refers to a certain part from the inheritance, from the inheritance to heirs who are entitled to a portion of an inheritance).

In practice of the court the partible inheritance was declared unassignable and immune from attachment (14).

Therefore, the unavailable aspect of the partible inheritance leads to the revocation of the acts for good and valuable consideration that is detrimental to the partible inheritance, the acts for good and valuable consideration remain available because the persons that leave the inheritance can, during his life, to dispose of his goods through acts for good and valuable consideration, when it is operated the substitution of things (15).

Substitution of things (16) can be under universal property or particular aspect. Delegation is of universal property when it made the automatic replacement of a value with another one within an inheritance. It can be explained only by using the term of inheritance, seen as a judicial universality where the rights and obligations are values related between them, that are likely to be replaced with other values (17).

The inheritance represents a judicial universality, that will exist no matter the movements produced, by the changement of his elements and independently of the holder's wish (18).

Substitution of things is with particular title when it takes the replacement of an individual good that is determined with another individual determined good, analyzed in their individuality (ut singuli). The substitution of things with particular property never operated in an automatic way, but it must be foreseen explicitly by law.

Partible inheritance cannot be considered unassignable and immune from attachment because, on the one side, the person who gives the inheritance is free to dispose through acts for good and valuable consideration or gratuitous of his goods, and the fact that the gifts made are detrimental or not to the opening of the inheritance, in relation with the situation if the heirs can or want to come to the inheritance. This does not mean that the goods are unassignable. On the other hand, the defunct's creditors can follow their goods also after his death, and the partible inheritance will be established after the decrease of passive inheritance.

In what concerns the unavailability of the partible inheritance, as it has already been seen, this is partial, as it aims only the gifts, not also the acts for good and valuable consideration (19).

Notes

(1) Claim of disinheritance of legal heirs enclosed in a will is not available but in the limits of the disposable portion of estate (T.S.,s.civ., dec.no.1471/1973, in the Judicial Repertoire of Civil Practice between 1969-1975, p. 202).

(2) M. Eliescu, Inheritance and its devolution in S.R.R. law S.R.R, Academy Publishing House, Bucharest,1966, p. 320.

(3) C. Hamangiu, I. Rosetti-Balanescu, Al. Baicoianu, Treaty of Civil Romanian Law,vol III, ALL Publishing House,Bucharest, 1998,p. 401,no. 963.

(4) Fr. Deak, Treaty on the Right of Inheritance, Actami Publishing House,Bucharest, 1999, p. 336; to be seen G. Plastara, Course of Romanian Civil Law, vol. III, Cartea Romaneasca Publishing House Bucharest, p. 594-595.

(5) M. Eliescu, work cited, p. 326.

(6) State notary office of district 1 Mai,Bucuresti, conclusion no.308 from 1956, in LP, year II(1956), no.11, p.1390, with note by O. Capatana.

(7) CSJ, s. civ., dec. no. 1314/1994, in Law no.7/1995, p.87.

(8) Fr. Deak, work cited, p. 338.

(9) Fr. Deak, work cited, p. 339.

(10) T.S., civ. Coll., dec. no. 3697/1956, in LP, year III (1957), no. 2, p. 234.

(11) CSJ, s.civ., dec. no. 1314/1994, Law no.7/1995, p. 87.

(12) M. Eliescu, work cited, p. 327.

(13) M. Eliescu, work cited, p. 324-326; E. Safta-Romano, Right of Inheritance.Doctrine and Case Law, Grafix Publishing House,Iasi,1995, p. 306-307; M. Dutu, Dictionar de drept privat Dictionary of Private Law, 2nd edition, MONDAN Publishing House, Bucharest, 2002, p. 678-679.

(14) CSJ, s. civ., dec. no. 1314/1994, in Law no. 7/1995, p. 87.

(15) D. Macovei, Civil Law.Inheritances, Chemarea Publishing House of the Foundation, Iasi, 1993, p. 116; V. Stoica, N. Puscas, P. Trusca, Civil Law.Institutions of Civil Law. Selective Course for Academic Degree, 2nd edition, Universul Juridic Publishing House, Bucharest, 2004, p. 564; M. I. Mutiu, Civil Law. Inheritance, Imprimeria de Vest Publishing House, Oradea, 1997, p.113.

(16) Delegation can also be personal, when it takes place the replacement o a person with another one in an compulsory judicial report, which happens when a third person named solvens paid the initial creditor instead of the debtor.To be seen I. Dogaru, P. Draghici, Civil Law. General Theory of Obligations,Scientific Publishing House, Bucharest, 1999, p.478 and following.; The personal delegation was defined as being a means of legal transmission or conventional of the right of claim with all the warranties and accessories, by a third person who paid the initial creditor instead of the debtor. To be seen C. Statescu, C. Barsan, Treaty of Civil Law. General Theory of Obligations, Academia Republicii Socialiste Romania Publishing House, Bucharest 1981; I. Dogaru, P. Draghici, Civil Law. General Theory of Obligations, All Beck Publishing House, Bucharest, 2002, p.489-490.

(17) S. Cercel, Civil Law. Heritage. Possession. Property, Universitaria Publishing House, 2002, p.25-27.

(18) C. R. Voinea, Heritage and assets, interferences si interdeterminations, Didactic and Educational Publishing House, R. A., Bucharest, 2006, 272- 273.

(19) M. Eliescu, work cited, p. 325; To be seen Fr. Deak, work cited, p. 341.
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Title Annotation:PROVOCARI CONTEMPORANE
Author:Patrascu, Adela
Publication:Revista de Stiinte Politice
Article Type:Report
Date:Oct 1, 2010
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