Disinherintance in the vision of the new Romanian Civil Code

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

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... (see full summary)

 
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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

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