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

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.