Are there any legal limits to disinheritance?
The testator can disinherit any legal heir, in whole or in part. But there is an exception to this rule, regarding reserved heirs (=a heir who is entitled to a portion of inheritance by law).
Thus, the notion of forced heirship should be explained, and it refers to the fact that there is a part of the inheritance to which reserved heirs have the right, by law, even if the testator would disinherit them, therefore against his will. But who are the reserved heirs? These are the surviving spouse, descendants and privileged ascendants of the deceased person.
We can observe that this category of heirs has a privilege comparing to the other heirs. They cannot be totally disinherited, even if the testator’s will expresses the contrary. It is an exception to the rule that the testator can decide over the whole estate according to his will, for the time he is no longer alive.
What can we do with the reserved legal heirs?
However, another question arises: how far does this forced heirship extend?
Well, the forced heirship equals the entitled part to each reserved heir by law, which represents half of the share of the estate which, in the absence of liberalities and disinheritance, would have been due to that person as a legal heir.
For instance, if the surviving spouse would have been received ½ of inheritance in the legal succession and it has been disinherited by the testator, since he is as a reserved heir, would still have been received ¼ of inheritance. This is half of what he would normally has been entitled to, by the legal inheritance, if he had not been disinherited by the testator. ‚
Also, we must know about the existence of disposable portion as well, which represents the part of the inheritance that is not reserved by law and the testator can dispose of it freely through the will. This part can be distributed by the testator as he wishes. For example, he can disinherit a descendant, who will still receive a part of inheritance (what is due from the inheritance share) and the surviving spouse can benefit by the rest of his part.
However, the non-reportable liberalities made to the surviving spouse, who will inherit in line with descendants, other than their common ones, cannot exceed than ¼ of the inheritance, nor the part of the descendant who received the least (art. 1090 of the Romanian Civil Code).
At the same time, the testator can disinherit the surviving spouse, and the heirs he comes in line with (usually the descendants) will take the left part of the inheritance after the surviving spouse takes the entitled part due to law (forced heirship- half of what would have been due to the surviving spouse from the legal inheritance).
A different situation, in addition to the one referring to the surviving spouse, is when the testator disinherits another legal heir as well, so the heir who ultimately benefits from the inheritance will be entitled to what remains after the allocation to the surviving spouse and disinherited shares’, due to their part of the inheritance through the forced heirship (if this heir is part of the reserved heirs, mentioned in art. 1087 of the Romanian Civil Code).
If an heir, as a result of disinheritance, receives a lower share than what would have been due to him from the legal inheritance, the heir with whom he comes in line will take that share that would normally have been distributed to the disinherited. In the last example, one or more legal heirs can be totally removed from the inheritance, and the part that would have been due to them will be assigned either to the heirs with whom they would have been in line or to the subsequent ones, if the first mentioned do not exist.
Therefore, disinheritance is possible only by drawing up a will in a valid way, defined by the law, during the deceased’s lifetime.
Otherwise, the rules of legal inheritance will apply directly. However, we observed in the previous situations the law limits the freedom of will of the deceased.
These limitations exist in order to preserve the balance in the testamentary matter and to reduce excessive liberalities, in this situation, the will, through which the testator could disproportionally assign shares of the inheritance.
Legal Intern R&R Partners
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