Disinherintance in the vision of the new Romanian Civil Code

• Author: Ioana Nicolae
• Position: Transylvania University of Brasov
• Pages: 119-127

Disinherintance in the vision of the new Romanian Civil Code

Assitant professor Phd. Ioana NICOLAE1

Abstract

Once the new Civil Code came into force on October 1st, 2011, disinheritance

became a new legal institution, with own characteristics and specifics established by the

lawmaker. While the 1864 Civil Code was still in force, doctrine and jurisprudence

acknowledged that disinheritance existed, but it was not expressly regulated. The current

study aims to clarify the notion of disinheritance, to describe its legal regulation, to identify

the different categories of disinheritance and to list the effects of disinheritance over the

heirs of the testator, but also to point out the limits of disinheritance.

Keywords: will, forced heirs, disinheritance, disownment, limits of disinheritance

JEL Classification: K11

1. Introduction – presentation of disinheritance and legal regulation

Before approaching the matter at hand, namely the institution of

disinheritance, we must first list a short presentation of the will and the most

important provisions of the will. This is necessary as disinheritance by the testator

is included in his will, which is a complex legal act. Also, we must distinguish

between the testator’s forced heirs, who, according to the law, are entitled to the

successor reserve, even against the testator’s will and the testator’s chosen heirs.

Dividing the heirs in those two categories is relevant as we are about to

show that disinheriting forced heirs can only be achieved within a certain limit,

namely by respecting the certain part of the inheritance to which they are entitled;

in the case of non forced heirs, disinheritance can be achieved without respecting

any limits, according to the will of the testator.

We will also point out disinheritance doctrine and jurisprudence solutions

from the time the 1864 Civil Code was in force. We will see that the main opinions

expressed in doctrine and found in the previous legal practice were considered by

the lawmaker when he expressly regulated the institution of disinheritance.

Before making a short presentation of the will, we will show that,

according to article 955 of the Civil Code, the patrimony of the defunct is passed

by legal inheritance to the extent to which the defunct did not make different

provisions by will. Thus, a part of the defunct patrimony can be passed on by legal

inheritance and another part can be passed on by testamentary inheritance; those

two ways can coexist. The general rule is that the patrimony is passed on by legal

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1 Ioana Nicolae – Transylvania University of Brasov, Law School, ioana.nicolae@unitbv.ro