Journal of Public Administration, Finance and Law (Dec 2022)
CONSIDERATIONS REGARDING THE SPECIFIC RIGHT TO INHERIT OF THE RELATIVES OF THE DECEASED IN LEGAL PRACTICE
Abstract
Usually,the succession is based on the principle of ties of blood between the persons in the same family. Not all the relatives of the deceased, no matter their degree, are called to receive an inheritance, because if they are called to receive an inheritance in an indefinite way and at the same time it would lead to an excessive partition of the inherited patrimony, fact which is not desired. In order to know the relatives who have the right to inherit the de cujus, the legislator uses two points of reference in order to establish the persons called to receive an inheritance, namely: the order of heirs and the degree of relationship between the deceased and the heirs. That is why, from the persons with legal rights, the legislator has established a certain specific order to call to receive an inheritance based on three general principles, each of them having some exceptions. Thus, the legislator has created four orders of heirs, establishing between them a priority sequence, according to their degree of kinship to the deceased. As we have previously mentioned, in the Civil Code the relatives of de cujus are classified in four orders of heirs, they being called to receive an inheritance in a pre-established sequence. Thus, if there is a single heir in the first order of heirs, who did not waive the inheritance and who has not been disqualified by conduct, he or she excludes from the succession the heirs in the subsequent orders. The heirs in the second order are called to receive the inheritance only if there are no relatives in the first order or if they have waived the succession or have been disqualified by conduct, the ones in the third order only if there are no heirs in the first two orders and so on. In the case there are heirs from different orders, in order to effectively call to receive an inheritance it is essential to establish the sequence of orders, and not their degree of relationship to the deceased. When we talk about the right to inherit of the relatives of the deceased as a necessary condition of the right to inherit, we must analyse it from two points of view, namely: the general right to inherit and the specific right to inherit. Thus, for a person to be effectively called to receive an inheritance, therefore to have a specific legal right, it is not enough for them to be included in the category of legal heirs, with general rights, but they also must meet a negative condition, namely they must not be excluded from the inheritance by another person called by the law in a priority order. We must take into consideration the fact that the right to inherit as an abstract fitness, becomes potential by the general right to inherit and effective, useful, by the specific right.
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