Considerations on the liquidation among the heirs of the funeral expenses

Author:Silviu-Dorin Schiopu
Pages:322-335
SUMMARY

According to article 984 par. (1) of the Civil Procedure Code, if an succession is divided, the court, in order to achieve a fair and complete division, determines the debts of the deceased, the debts and claims of the heirs towards the deceased, as well as the charges on the succession. The latter also include the expenses related to the burial of the deceased, both those related to the burial itself, and those related to respecting religious traditions and the value of funerary monuments. Thus, by virtue of the Latin adage “bona non intelliguntur nisi deducto aere alieno” (no goods are recognized unless debts have been removed), the formation and assignment of lots is preceded by the liquidation of the succession debts among the heirs, respectively the distribution of the responsibility for the funeral expenses between the heirs. Given that in the time that has elapsed since the Great Union a series of regulations on succession law followed, this study aims to present some aspects of the liquidation between the heirs of the expenses related to the funeral of the deceased, starting with the legislation applicable in the historical provinces to date.

 
CONTENT
322 SILVIU-DORIN ŞCHIOPU
CONSIDERATIONS ON THE LIQUIDATION AMONG
THE HEIRS OF THE FUNERAL EXPENSES*
Silviu-Dorin ŞCHIOPU**
Abstract
According to article 984 par. (1) of the Civil Procedure Code, if an succession is divided, the
court, in order to achieve a fair and complete division, determines the debts of the deceased, the debts
and claims of the heirs towards the deceased, as well as the charges on the succession. The latter also
include the expenses related to the burial of the deceased, both those related to the burial itself, and
those related to respecting religious traditions and the value of funerary monuments. Thus, by virtue
of the Latin adage “bona non intelliguntur nisi deducto aere alieno” (no goods are recognized unless
debts have been removed), the formation and assignment of lots is preceded by the liquidation of the
succession debts among the heirs, respectively the distribution of the responsibility for the funeral
expenses between the heirs. Given that in the time that has elapsed since the Great Union a series of
regulations on succession law followed, this study aims to present some aspects of the liquidation
between the heirs of the expenses related to the funeral of the deceased, starting with the legislation
applicable in the historical provinces to date.
Keywords: charges on the succession, funeral expenses, commemoration expenses, estate
judicial division, liquidation of the succession debts.
Introductory Considerations
Any death causes funeral expenses, even in the absence of the deceased's
earthly remains, as is the case of raising a cenotaph or respecting religious
traditions. The organization of the funeral may result from the will of the deceased,
according to article 80 par. (1) Civil Code1 the deceased having the right to
determine the type of his own funeral, or, in the absence of an explicit choice of the
deceased person, from the will of other persons prescribed by law.
* The article was presented at the National Conference "100 Years of Law", held at Tîrgu-Mureş
on 21 October 2018. The conference was organized by the Transylvanian Association for Culture
within the project "100 Years in 10 Days" financed by the Romanian Ministry of Culture and National
Identity through project no. 5245/10.10.2018.
** Assistant lecturer at the Faculty of Law – Transilvania University of Braşov, silviu-
dorin.schiopu@unitbv.ro.
1 Law no. 287 from 17 July 2009 regarding the Civil Code, republished in the Official Journal of
Romania, Part I, no. 505 from 15th of July 2011.
Law Review vol. VIII, issue 2, Jul
y
-December 2018, pp. 322-335
Considerations on the liquidation among the heirs of the funeral expenses 323
For the situation where the deceased did not order his funeral, article 17
par. (1) of the Law no. 102/20142 provides that the following persons are obliged to
dispose in relation to the funeral: a) the person who has contracted the obligation
to take care of the funeral; b) the person indicated by the will of the deceased; c) in
the absence of will, the husband or the wife of the deceased, who lived in the same
dwelling with the deceased person in the last part of his/her life; d) another close
relative of the deceased, up to fourth degree of kinship.
Since the right to dispose as to the funeral is not entirely correlated with the
legal or testamentary devolution of successions, we can also encounter the
situation where the person who has the right to manifest his will regarding the
organization of the funeral is not at the same time one of those called to inherit the
deceased3, such as when the deceased leaves only relatives in the collateral line and
has established several extraneous universal legatees, the latter not being obliged
by will to take care of the funeral. In this case, the collaterals, although having the
obligation to order the funeral, do not benefit from the inheritance, being removed
from it.
However, most of the time, the heirs of the deceased or at least some of them
take care of the funeral arrangements, contributing at least partially to the expenses
related to the funeral of the deceased, both the funeral itself and the observance of
the religious traditions (religious services and feasts – funeral banquets4 – that take
place after such a funeral Mass to commemorate the memory of the deceased) and
the cost of funerary monuments.
Funeral expenses are included in the charges on the succession, obligations
which, without existing in the deceased's patrimony, are born at the opening of the
inheritance or subsequently, regardless of the will of the deceased or of his will5,
but also derive from the death of the one who leaves the inheritance. The charges
on the succession, together with the debts of the deceased, constitute the debts of
the succession, and these are divided ipso jure6 among the heirs in the moment of
the opening of the succession, in proportion to the inheritance part received, so
that, according to article 1155 par. (1) Civil Code, the obligation to bear the debts of
2 Law no. 102 from 8 July 2014 on cemeteries, human crematoriums and funeral services,
published in the Official Journal of Romania, Part I, no. 520 from 11th of July 2014.
3 S.-D. Şchiopu, The persons obliged to dispose as to the funeral, in „Revista Universul Juridic”
no. 8/2018, p. 156.
4 See also F. Pavel, Part of the soul. An old legal custom of Roman origin, embedded in the content
designated by the concept of “duty of inheritance”, in „Revista român de jurispruden” no. 4/2016,
p. 182-183.
5 F. Deak, Treatise on succession law, second edition updated and completed, Bucharest: Universul
Juridic, 2002, p. 453.
6 This rule is not imperative so the deceased may charge one of the heirs with the full bearing of
the funeral expenses and the exemption of the other heirs constitutes, according to art. 1155 par. (3)
letter d) Civil code, a liberality to be reduced, if necessary.
324 SILVIU-DORIN ŞCHIOPU
the succession falls on the heirs who acquire the entire estate of the deceased or a
fraction thereof, i.e. onto the legal heirs and the universal legatees or the legatees
by general title.
Universal legatees and legatees by general title, therefore, contribute to the
payment of the charges on the succession and, implicitly, to the funeral expenses,
in proportion to the inheritance share of each one. The legatees by particular title
have a different situation in that they acquire only a certain good or a certain right,
so that they are usually obliged to bear the burial costs only if the other inherited
assets would be insufficient to pay the charges on the succession.
Among the heirs takes place also the judicial division of the inheritance so that
the liquidation of funeral expenses can be accomplished concurrently with solving
the dispute aimed to put an end to the indivision between heirs.
Although death is a constant that has accompanied us throughout history, for
“every man owes a death” (I.S. Turgenev), after the Great Union of 1918 the
regulation of funeral expenses was not always subject to the same rules throughout
Romania. The union, though bringing together the historical provinces, did not
also mark the moment of a legislative unification. Therefore, in what follows we
will discuss how the matter of funeral expenses was regulated a century ago in the
legal systems applied on the current territory of Romania, and will then look at the
content of funeral expenses at present, as well as the liquidation of funeral
expenses between heirs, without overlooking some aspects of tax law on the
amount of such expenditure.
Funeral Expenses in the Legislation Applied before the Unification
Austrian law
The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) was
implemented on 1 January 1812 in Bukovina by Imperial Patent no. 496 of 1 June
1811, on 1 May 1853 in Banat through Imperial Patent no. 246 of 29 November 1852
and on 1 September 1853 in Transylvania by Imperial Patent no. 99 of 29 May 1853.
Later, in 1861, the customary Hungarian law replaced the Austrian Civil Code in
some parts of Banat and Transylvania7 and in Bucovina two Novels abrogated,
completed and amended in 1914 and 1916 a series of texts on the matter of
inheritance.
Also, the Austrian Civil Code applied in Banat and Transylvania was
completed and amended by the Hungarian laws from 1867 to 18 October 1918, and
7 For the territorial division of the common courts, see I. Corjescu (translator), The Austrian
General Civil Code comprising the official text, laws, novels and ordinances published for its completion and
modification or for the matters contained therein, applicable some in Bukovina, others in Transylvania,
Bucharest: Imprimeria Statului, 1921, p. V-VII.
Considerations on the liquidation among the heirs of the funeral expenses 325
from this date Romanian law-decrees were added8. Unlike Bukovina, the Austrian
Civil Code applied in Banat and Transylvania was not modified by the two novels,
namely the Imperial Ordinance of 12 October 1914 and that of 19 March 1916.
The Austrian Civil Code and the normative acts that completed or modified it
were maintained in force after the Great Union of 1918 by article I par. (1) of the
Decree-Law from 18 December 1918 for the administration of Bukovina and by
Decree no. 1 of 24 January 1919 issued by the Conducting Council of Transylvania,
Banat and the Romanian Parts of Hungary. The same measure was taken by article
137 par. (2) of the Romanian Constitution of 19239 and article 98 par. (4) of the
Romanian Constitution of 193810 but with the intent that all codes and laws in force
would be revised later in order to ensure legislative unity throughout Romania.
According to article 549 Austrian Civil Code, “funeral expenses corresponding
to the custom of the place, with the situation and the estate of the deceased” were
part of the charges inherent on the succession, because a quick burial of the
deceased is imposed for sanitary reasons, and habit and morality claim a dignified
burial. Likewise, article 2 par. (1) of the Law no. 102/2014 provides that everyone
is entitled to a decent funeral.
Funeral expenses included the cost of the funerary monument, the religious
services and funeral banquets, and this charge had preference over other creditors,
so that when the deceased's estate was insufficient to cover the debts of the
succession, the creditors received only what remained of the inheritance after
deducting the funeral expenses11.
Similarly, article 865 par. (1) letter b) from the Code of Civil Procedure12 in
relation to the rank of claims having general preference, orders that such expenses,
8 Dr. Anca (Leontin I.), Compendiu de drept civil cuprinzând codul civil austriac în vigoare în
Transilvania, Cluj, 1924, p. 10, apud G. Plastara, Romanian civil law course informed about the jurisprudence,
the positive legislation, the new legal tendencies, the comparative law and the law of the adjoining provinces,
Volume III, Part I: Successions and Liberalities, Bucharest: Cartea Româneasc, s.a., p. 269, n. 3.
9 Promulgated with the Royal Decree no. 1.360 of 28 March 1923 and published in the Official
Journal of Romania, Part I, no. 282 from 29th of March 1923.
10 Promulgated with the Royal Decree of 27 February, 1938 and published in the Official Journal
of Romania, Part I, no. 48 from 28th of February 1938.
11 C. Bardoşi, Liquidation of the debts and charges on the succession in the Romanian, Austrian and
Hungarian Law. Doctoral thesis defended at the State Faculty of Law and Sciences from Cluj in the
field of Comparative Civil Law - 1927, reprint from „Revista Notarilor Publici”, p. 10. Similarly, art.
945 par. (1) of the Civil Code Carol II (republished in the Official Journal of Romania, Part I, no. 206
from 6th of September 1940, as amended) stipulated that "the charges on the succession will be paid
before the debts of the deceased." According to art. 930 (2) of the same code, the funeral expenses
should be considered among the charges on the succession.
12 Law no. 134 from 1 July 2010 regarding the Code of Civil Procedure, republished in the Official
Journal of Romania, Part I, no. 247 from 10th of April 2015.
326 SILVIU-DORIN ŞCHIOPU
in so far as they have been incurred in relation to the debtor's condition and status,
precede other claims13. Unlike the Austrian Civil Code, our Code of Civil
Procedure does not explicitly mention the custom of the place, but this condition is
somehow understood because “it is notorious that at present the religious practice
of custom has a different content in the different localities in Romania, especially in
villages and communes, where the non-observance of the community rules is
sanctioned by public opprobrium”14.
In the Austrian law system, the funeral entrepreneur could not turn against all
heirs for the payment of these expenses, but he could claim them only from the
heir who had ordered the funeral, even when the spending exceeded the
appropriate limits corresponding to the custom of the place, the situation and the
deceased's estate. Also, only the heir who had commissioned the funeral could
claim compensation for the expenses incurred15.
Hungarian law
In some parts of Banat and Transylvania, in 1861, Hungarian private law
replaced the Austrian Civil Code. After the Great Union of 1918, as in the case of
the Austrian Civil Code, Hungarian law was maintained, initially by Decree no. 1
of 24 January 1919 issued by the Conducting Council of Transylvania, Banat and
the Romanian Parts of Hungary, and subsequently by the same constitutional
provisions.
According to Hungarian law, funeral expenses, the transport of the corpse, the
grave, the funerary monument, as well as the religious services and funeral
banquets were included in the charges on the succession, with the remark that all
these expenses were to be reduced by the court “to a measure appropriate to the
material state and the social position that de cuius had”16.
Reporting funeral expenses to the estate and social status of the deceased has
no modern origins, since this rule can be found in the writings of the Roman jurist
Ulpian: sumtus funeris arbitrantur pro facultatibus, vel dignitate defuncti17.
13 With the exception of those mentioned in art. 865 par. (1) lit. a) from the Code of Civil
Procedure.
14 F. Pavel, op. cit., p. 183.
15 C. Bardoşi, op. cit., p. 11, n. 1.
16 Idem, p. 12.
17 D.11.7.12.5 (Ulpianus lib. 25 ad Edictum) in „Corpus Iuris Civilis”, ed. Albert Kriegel şi Moritz
Kriegel, pars prior, impressio septima, Lipsiae: sumtibus Baumgaertneri, 1865.
Considerations on the liquidation among the heirs of the funeral expenses 327
Romanian law
In the Old Kingdom, the Civil Code of 186418 was implemented from 1
December 186519. Unlike the Austrian Civil Code, our code did not mention
funeral expenses, but the doctrine20 considered them as part of the content of the
notion of charge on the succession, the latter being mentioned for example in
article 774 (co-heirs contribute to the payment of the debts and charges on the
succession, each in proportion to what it takes).
In the case of the judicial partition of the inheritance, in application of the
provisions of the Civil Code of 1864, the courts considered the expenses incurred
with the burial, the alms and the funerary monument as part of the charges on the
succession, being deducted from the assets of the inheritance21.
The correlation between bearing the burial expenses as a charge on the
succession, on the one hand, and the quality of heir to the deceased, on the other
hand, is also illustrated in the jurisprudence from the beginning of the last century,
when, according to article 652 par. (2) and article 679 from the Civil Code of 1864
which provided that the surviving spouse could inherit only in the absence of
legitimate or natural heirs of the twelfth degree, it has been ruled that not the
husband has to bear the funeral expenses of his wife, but hes heirs, because the
husband cannot be forced to bear the charges of the marriage after the death of
his wife22.
On the other hand, in the case of a deceased wife without children, but
married with dowry, it was considered that the husband has to bear the funeral
and memorial expenses, not her heirs, since such expenses stem from a natural
obligation23 and cannot be claimed back, since according to article 1392 par. (2)
Civil Code of 1864 repetition is not admitted in respect of natural obligations,
which have been freely paid.
Although after the Great Union in 1918 the provinces united with the Old
Kingdom have for the time being retained their own legislative identity, there are
18 Published in the Official Journal of Romania no. 271 from 4th of December 1864, no. 7 from 12th
of January 1865, no. 8 from 13th of January 1865, no. 8 from 14th of January 1865, no. 11 from 16th of
January 1865 and no. 13 from 19th of January 1865.
19 The 1864 Civil Code did not apply to all people in the Old Kingdom: the Mohammedan
population of Dobrogea (historical region divided since the 19th century between Bulgaria and
Romania.) was subject to Muslim legislation on successions (Article 30 of the Law on the Organization
of Dobrogea). See D. Alexandresco, Theoretical and Practical Explanations on Romanian Civil Law as
Compared to the Old Laws and to the Main Foreign Laws, tome III - part II: Ab intestat successions,
Bucharest: Atelierele Grafice Socec & Co., 1912, p. 220.
20 M. B. Cantacuzino, Elements of Civil Law [1921], Bucharest: All Educational, 1998, p. 284; D.
Alexandresco, op. cit., p. 59, n. 4.
21 F. Pavel, op. cit., p. 182.
22 Romanian Court of Cassation, section I, 21 October 1913, Curierul Judiciar, in G. Plastara, op. cit.,
p. 807.
23 N. J. Constantinescu, On successions, second edition, Bucharest: Curierul Judiciar, s.a., p. 43-44.
328 SILVIU-DORIN ŞCHIOPU
no differences in the funeral expenses, all three legal systems permitting the
inclusion of funeral expenses in the sphere of the concept of charge on the
succession, burden that should be appreciated pro facultatibus, vel dignitate defuncti.
In relation to the completion of the Union in terms of legislation, the 1923
Constitution provided for in article 137 par. (1) that “all codes and laws existing in
the different parts of the Romanian State will be revised in order to bring them into
line with the present Constitution and ensure legislative unity”. Equally, according
to article 98 par. (4) of the 1938 Constitution, all codes and laws in force were to be
revised with a view to unifying the legislation.
This goal, although it should have been accomplished by a new civil code24,
and in the interwar period there were made studies with rich de lege ferenda
proposals25 it was eventually accomplished by the extension in the new territories
of the civil law from the Old Kingdom of Romania, considering that on the
territory of the Romanian state there is “no other civil law better and more
susceptible to progress than our civil code [from 1864] and that it cannot be
allowed to take as basis in the new legislation other than this code” 26 and “even
though those laws [from the new territories] would be superior to the Old
Kingdom, it would still have been expected a demand for their replacement” 27.
Therefore, from 15 October 1938, through the Decree-law no. 478/193828 the
Austrian Civil Code was abolished and the civil law from the Old Kingdom was
extended to Bukovina, with all the changes that had been made to it until then,
without any exception. Since following the Second Vienna Award of 1940 Romania
lost the territory of Northern Transylvania, the extension of the civil law of the Old
Kingdom to the territories over the Carpathians did not initially include the North
of Transylvania. In Banat and in Southern Transylvania, the application of the
Romanian Civil Code from 1864 was extended, starting with 15 September 1943
through Law no. 389/194329. This legislative unification was completed with the
regaining of Northern Transylvania and the extension of Romania's legislation
24 The Civil Code Carol II, whose entry into force was delayed sine die in January 1941.
25 As an example, see G. Docan, Comparative civil law studies: Hungarian and Austrian legislation in
Transylvania compared to Romanian law, volume V, Bucharest: Curierul Judiciar, 1926.
26 A. Rdulescu, The Legislative Unification, Bucharest: Cultura Naional, 1927 [reprint from the
Annals of the Romanian Academy, Memoirs of the Historical Section, series III, tom. VII: 373-415], p.
31 [403].
27 Idem, p. 33 [405]. In private law matters, the first step was the Law for the expansion in Bessarabia
of some provisions from the legislation of the Old Kingdom, enacted by the Royal Decree no. 876 from 29th
of March 1928, published in The Official Journal of Romania, Part I, no. 77 from 4th of April 1928.
28 Decree-law no. 478 from 30 September 1938 for the expansion in Bukovina of the Old Kingdom’s
legislation, published in the Official Journal of Romania, Part I, no. 228 from 1st of October 1938.
29 Law no. 389 from 21 June 1943 on the expansion of the civil and commercial legislation in the
Trans-Carpathian Romania, published in the Official Journal of Romania, Part I, no. 142 from 22nd of
June 1943.
Considerations on the liquidation among the heirs of the funeral expenses 329
through Law no. 260/194530. However, the veritable legislative unification took
place only with the implementation on the 1st of October 2011 of the 2009
Civil Code31.
Content of Funeral Expenses at Present
The current civil code, although, unlike its predecessor, mentions the funeral
expenses under article 1392 – but not in relation to the charges on the succession,
but in the context of the reparation of the damage in the case of tort liability –
doesn’t individualize them. Funeral expenses include both the expenses related to
the moment of the actual funeral, as well as the subsequent ones concerning the
organization of the commemorative religious services and funeral banquets.
The expenditure related to the burial moment itself includes the cost of the
concession of the burial plot, the funeral monument, the coffin and its accessories,
the funeral services, the funeral Mass officiated by religious representatives on the
occasion of the religious burial, as well as the cost of the funeral banquet and the
funeral customs.
Funeral expenses are admitted as charges on the succession, only to the extent
that they are not excessive32, so the construction of a burial vault or a mausoleum
cannot be considered as a charge on the succession33, but may be a charge imposed
on the legatee or expressly assumed by contract. Also, the cost of a funerary
monument can be excessive when it includes important artwork or is made with
high value materials, but in such circumstances, at the request of the interested
party, the court will be obliged to reduce the amount of funeral expenses to be
incurred as part of the debts of the succession34.
As for the content of the expenses for the religious services and funeral
banquets that take place after the actual funeral to commemorate the memory of
the deceased, the Orthodox tradition requires that, after the funeral, to organize
religious services and commemorative feasts at 3 days, 9 days, 40 days, 3 months, 6
30 Law no. 260 from 4 April 1945 on the applicable legislation in Northern Transylvania, and the
rights acquired in this territory during the Hungarian occupation, published in the Official Journal of
Romania, Part I, no. 78 from 4th of April 1945.
31 See S.-D. Şchiopu, Short considerations on the legislative unification in civil matters, in „Revista
român de jurispruden” no. 2/2018, p. 178.
32 Supreme Court, civil section, decision no. 478/1989, in „Revista român de drept” no. 1-2/1990,
p. 128.
33 See Ploieşti Court of Appeal, civil section, decision no. 1696/1996, unpublished, apud A. L. Banu,
The liabilities of the inheritance, Bucharest: Universul Juridic, 2011, p. 106, n. 2.
34 S.-D. Şchiopu, Bearing the funeral expenses, in „Dreptul” no. 8/2018, p. 41.
330 SILVIU-DORIN ŞCHIOPU
months and one year after death35. Also, on these occasions, various gifts are
offered for the soul of the departed.
Neither post-funeral expense should be excessive, character that we think
should be appreciated by reference to the value of the estate, the social status of the
deceased (not of the heirs), the religious cult he was part of, as well as the local
funeral customs.
Action on the Liquidation of Funeral Expenses
On the one hand, article 984 par. (1) final thesis from the Code of Civil
Procedure provides that “if an inheritance is partitioned, the court will also
establish [...] the charges on the succession” and, on the other hand, according to
article 1157 par. (1) from the Civil Code on the actions of the heirs against their
coheirs for the amounts they paid in excess of their share, the heir who has paid
more than his share of the common debt has the right to pursue remedies against
the other heirs, but only for the share of the common debt (debts of the succession)
that belongs to each one.
As, more often than not, the heirs of the deceased or at least some of them take
care of the funeral arrangements voluntarily, contributing at least to some of the
funeral expenses, one can encounter the situation where one of the heirs paid all
the funeral expenses, that is to say, over his share from the debts of the succession.
Thus, when an heir has paid over his share, he is granted a right against the
other heirs held to pay the debts of the succession. The action for the liquidation of
funeral expenses and the observance of the religious traditions exercised by the
heir who voluntarily paid the deceased’s funeral over his contributory part is a
personal civil action based on negotiorum gestio36.
Since it has as its object the recovery of a debt claim, having a patrimonial and
personal character, the action for the liquidation of funeral expenses is subject to
extinctive prescription within the general limitation period applicable to debt
rights, irrespective of whether the action is formulated within the action aimed to
put an end to the indivision between heirs or separately37.
35 See High Court of Cassation and Justice, criminal section, decision no. 362/2014, available on
http://www.scj.ro, consulted on 15.10.2018, as well as G. P. Gheorghiu, The custom and the law. The
derogatory power of custom, Bucharest: Tipografia Federaiei Naionale Cooperative de Librrie, 1943,
apud F. Pavel, op. cit., p. 182-183.
36 D. Chiric, Treatise on Civil Law: Successions and liberalities, second edition, Bucharest:
Hamangiu, 2017, p. 421.
37 G. Boroi in G. Boroi, L. Stnciulescu, Civil law institutions in the regulation of the new Civil Code,
Bucharest: Hamangiu, 2012, p. 294-295. In the same sense, High Court of Cassation and Justice,
decision no. 6 from 19th of January 2009 concerning the prescriptive nature of the requests for the
liquidation of claims relating to funeral expenses and the expenses for observance of the religious
traditions constituting the liabilities of the succession, published in The Official Journal of Romania,
Part I, no. 321 from 14th of May 2009.
Considerations on the liquidation among the heirs of the funeral expenses 331
The possession of the inherited assets by the heir, who paid for the funeral, has
a prescription breaker character because this possession has the significance of
recognition from the other heirs, so that the limitation period starts to run from the
date of the request for the inheritance partition, which could result in the creditor
being deprived of the succession assets38.
This is a relatively recent orientation, the previous practice being that the
liquidation of funeral expenses between heirs within the succession partition was
not subject to prescription because the action for partition is imprescriptible 39, and
the claims regarding the funeral expenses and for the respect of religious traditions
follows the legal status of the partition.
What happens, however, with the liquidation of funeral expenses between
heirs in the event that the deceased's debts are to exhaust the entire inheritance
mass? The Civil Code Carol II, according to which the funeral expenses were
considered among the charges on the succession, offered an adequate solution in
the sense that the charges on the succession were to be paid before the debts of the
deceased. Unfortunately, the Civil Code of 2009 does not distinguish between the
debts of the deceased and the charges on the succession in terms of their
liquidation. Only the Code of Civil Procedure by article 865 par. (1) letter b) orders
that such expenses, in so far as they have been incurred in relation to the debtor's
condition and status, precede other claims, other than those referred to in the
preceding paragraph.
Funeral Expenses…and Taxes
“Anyone is entitled to a decent funeral”, according to article 2 par. (1) from the
Law no. 102/2014, and therefore funeral expenses must be within certain limits “in
the sense of acceptable, reasonable expenses”40. However, these may be more
significant, but only when they were indicated by the deceased, as the latter can
determine the way of his own funeral, or when they are paid with the consent of
the heirs out of the deceased's patrimony41.
Currently, according to the Methodological Norms for the Application of the
Fiscal Code, "the debts of the succession include [...] also the funeral expenses up to
38 Supreme Court, civil section, decision no. 503/1987, in „Revista român de drept” no. 12/1987,
p. 72-73; G. Boroi, op. cit., p. 295.
39 Supreme Court, civil section, decision no. 1699/1972 in „Revista român de drept” no. 4/1973,
apud C. Turianu, Succession and estate division: commented and annotated case-law, Bucharest: Pinguin
Book, 2004, p. 245.
40 F. Pavel, op. cit., p. 183.
41 Ibidem.
332 SILVIU-DORIN ŞCHIOPU
the amount of 1.000 lei, which need not be proven by written documents” 42. Per a
contrario, for the purpose of calculating the inheritance tax, the inclusion of a higher
amount in the debts of the succession can be made only by proving the difference
with documentary evidence.
In contrast to the current regulation, article 55 from the Law on the stamp duties
and the tax on legal acts and deeds from 29 April 1927 provided that “Not more than
50.000 lei shall be admitted to the debts of the succession as funeral expenses. […]
In setting the amount, account will be taken of the social condition of the deceased
and the importance of the wealth left”43. The establishment of a limit on the
amount of funeral expenses is explained by the fact that during the interwar period
the inheritance tax was calculated on the net share of each heir or legatee, and
excessive funeral costs could substantially diminish the net inheritance mass and
implicitly the tax owed.
The fact that in the year 1939 the progressive tax on successions varied
between 3% (the first tranche of 100.000 lei from the net inheritance remitted to the
1st degree descendants and the spouses) and 56% (the tranche of 30.000.001 to
50.000.000 lei of the net mortis causa liberality that was remitted to strangers and
relatives from the fourth degree up) justifies the legislator's interest in imposing a
maximum threshold on funeral expenses precisely to limit the possibility of tax
evasion.
We underline that this limitation of funeral expenses only concerned the fiscal
aspects of the liquidation of the debts of the succession, so that on the field of civil
law the assessment of the excessive character of the amount of the funeral expenses
was made by reference to the need to satisfy the creditors of the inheritance, as it
happens today when such expenses, in so far as they have been incurred in relation
to the debtor's condition and status, generally precede other claims.
Since the tax provided by the Fiscal Code is no longer a true inheritance tax,
but has rather the nature of a fine for not completing the succession proceedings
within two years from the death, being set up not so much to obtain state revenues,
but rather to compel the heirs to complete the notary succession procedure within
a reasonable time44, the limitation of the amount of funeral expenses in tax matters
is no longer justified, so that the provision from the Law on the stamp duties and
the tax on legal acts and deeds from 29 April 1927 has not been taken up by the
current legislator.
42 See the Methodological Norms for the Application of the Law no. 227/2015 regarding the Fiscal Code,
approved by the Government Decision no. 1 from 6 January 2016, published in the Official Journal of
Romania, Part I, no. 22 from 13th of January 2016.
43 Law from 29 April 1927 on the stamp duties and the tax on legal acts and deeds, official edition,
Bucharest: Monitorul Oficial şi Imprimeriile statului. Imprimeria Central, 1939.
44 In this regard, see I. Nicolae, The Development of Inheritance Tax in Romania, in „Revista român
de drept al afacerilor” no. 10/2015, p. 102.
Considerations on the liquidation among the heirs of the funeral expenses 333
References:
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334 SILVIU-DORIN ŞCHIOPU
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