Aspects related on the issue of special free estate in relation to the provisions of the Romanian Civil Code

Author:Veronica Stoica, Laurentiu Dragu
Pages:232-245
SUMMARY

In our study, we will analyze a special issue of Civil Law, a problem of whom application may generate controversies as a result of how it is solved by current legal provisions. This is the special free estate of the living spouse, established by the art. 1090 Civil Code. Thus, the legislator forbids the donations whereby the forced estate of the forced heirs (Article 1086-1088 of the Civil Code) ... (see full summary)

 
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Aspects related on the issue of special free estate in relation
to the provisions of the Romanian Civil Code
Professor Veronica STOICA1
Lecturer Laurențiu DRAGU2
Abstract
In our study, we will analyze a special issue o f Civil Law, a problem of whom
application may generate controversies as a result of how it is solved by current legal
provisions. This is the special free estate of the living spouse, established by the art. 1090
Civil Code. Thus, the legislator forbids the donations whereby the forced estate of the
forced heirs (Article 1086 -1088 of the Civil Code) is breached, and limits the right of
disposal of the patrimony holder, as a rule, to the ordinary free estate. Instead, when the
living spouse is gratified at the expense of the deceased's descendants who are "not
common", that is, they are not the survivors of the deceased and of the living spouse, the
legislator sets a special limit of the right to dispo se, established by the art. 1090 Civil
Code. In the elaboration of the study we will interpret logically and systematically the
provisions of the Civil Code that have an impact on the subject to analysis, tryin g to
provide so lutions to different factual situations that would be subject to the provisions in
question.
Keywords: donation, living spouse, descendants, forced estate, special free estate.
JEL Classification: K11, K15
1. General considerations
The free estate of the living spouse was established by art. 939 Civil Code
of 1964, which stipulated that "A man or woman who, having children from
another marriage, will pass in the second or subsequent marriage, could give the
latter only a part equal to the part of the legitimate child who took less, and it is not
possible the fact that the donation pass over the quartet of goods."
The current civil code, similar to the Code of 1864, stipulates the free
estate of living spouse in Art. 1090, pointing out: "(1) The unreachable liberalities
made to the living spouse, which comes to inheritance in concurrence with
descendants other than their common descendants, cannot exceed a quarter of the
inheritance nor the part of the descendant who received the least . (2) If the
1 Veronica Stoica - "Alexandru Ioan Cuza" Police Academy in Bucharest, Romania,
verostoica@yahoo.com.
2 Dragu Laurențiu - "Alexandru Ioan Cuza" Police Academy in Bucharest, Romania,
laurentiudragu@yahoo.com.

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