In a recent ruling of the Civil Chamber, dated May 25, 2009, the High Court recognized the validity of a contract in which both parents disposed of their children’s community property.
In this case, the descendants assume two types of obligations, on the one hand, patrimonial, consisting of the payment of a fixed income that may be increased if the needs increase, with the corresponding guarantee in the limitation of the power to dispose, and personal, consisting of living together in the family home and special assistance in the case of illness, establishing very specifically the shifts and substitutions, with the corresponding sanction for the case of non-compliance with said obligations.
Finally, representation is also established in relation to the administration of parental income. As the possibility of non-compliance in this type of contract is very high, due to the large number of years that can elapse from the signing to the death of the last of the parents, it is necessary that when signing the contract before the notary, it is It is necessary to anticipate events, such as the caregiver dying before the testator, or personal or family circumstances that make it impossible for him to care for him after having duly provided care for a long time.
The rapporteur, Judge Roca Trías, relies on the rule of article 1,284 of the Civil Code (CC) in favor of the most favorable interpretation of the effectiveness of the contracts. For this reason, it is necessary to make it very clear that he understands the testator by care and attention and when they should begin to be provided, if he is healthy, sick or only when he does not fend for himself. In addition, it is necessary to state in detail how they are to be provided.
These types of contracts are very important, because they ensure the quality of life of the parents and allow the inheritance to be disposed of without restrictions to achieve their attention and care, although the agreement and acceptance of all the heirs is necessary for their validity. Thus, once the parents have died, none of their children will be able to claim the inheritance, arguing that the CC does not allow them to renounce the inheritance.
The difference between a life contract and a waiver of inheritance is that the first is an onerous, complex and atypical contract in which obligations of maintenance and elements of the life annuity are mixed, with compliance obligations on both parties. .
The use of this type of contract is not very widespread, it is common for law firms and notaries to receive queries from couples who want to make a will to bequeath their assets to the person who cares for them, whether family or not, because Her children, already independent, see them very occasionally, without assuming even a part of her care and affective attention.
As can be seen, the testator is not legally free to leave his assets to whoever he wants, since there is a legal obligation to leave the legitimate one to the descendants, ascendants and spouse, called forced heirs.
two thirds regulated
The legitimate one, instituted in the Civil Code, is constituted by two thirds of the inheritance of the deceased. The first of these is divided equally among the children, while the other (the so-called improvement) is distributed freely among them or leaves only one of the descendants as beneficiary.
That of the parents represents half of the hereditary assets of the descendants. If they concur with the widowed spouse, they will inherit only one third of the inheritance. The legitimate that is recognized to them is divided between both equally and if one died, he will inherit the living.
If there are no parents, the legitimate one is divided among the four grandparents equally. But if the ancestors are, for example, a grandfather and a great-grandfather, only the grandfather inherits.
As the children have the bare ownership of their part of the inheritance, the surviving father can be usufructuary and live in the family home without anyone being able to throw him out, even if he needs everyone’s consent to sell or encumber it.
more limitations
The limitations, however, do not end there, since it is necessary to take into account the legal figure of collation (arts. 1,035 – 1,050 of the Civil Code), used to calculate the donations that the deceased made while alive to one or more several forced heirs. Therefore, the donations are added to the so-called relic estate (that is, to the assets and rights that are integrated into the inheritance and that will later be distributed among the heirs), to then proceed to calculate the amount of the legitimate ones.
And the other restriction is uselessness, which limits donations made while alive. If these harm the legitimate of the forced heirs, they, as affected, have the right to have said donations reduced, so whoever has received one of these donations will be obliged to restitute to the forced heirs the part that would have been excessive, in according to the rules of the Civil Code (arts. 819 and 820).
Other situations raised
In law firms and notary offices, couples expressing their desire to leave full ownership of their assets to the survivor are very common, since they consider that their assets, mainly their home, are theirs and that they will probably need to sell it to afford a residence when they cannot fend for themselves.
There are also those who want to agree on the separation of property regime to each have their own property, which would avoid having to sell the family home if the legitimate one has to be distributed.
Then, there are cases with a business bias, such as business owners who want to leave it entirely to their spouse or to a single child who is interested in it, since the legitimacy of ascendants and descendants prevents it. You will also find it difficult to prevent it from falling into the hands of a child with reduced capacity due to his addiction to alcohol, drugs or gambling.
heritage emptying
It is not uncommon for the testator, while alive, to empty the inheritance of content and thus deprive his children and descendants of the legitimate inheritance. It is usually done with simulated businesses (purchases and sales that conceal donations) or through commercial companies or foundations.
There is a simulated contract when several people agree to pretend the reality of a certain contract and do not want to celebrate any (absolute simulation) or want to cover up a different one (relative simulation), either in its nature (you want to donate a business and it is externalized a sale), either in its object (different price) or in the subjects (contracts with the interposition of a person), or in any of the other elements, even accidental (simulation of condition or term).
In the case of the life contract, in order to demonstrate that it hides a simulated business, it will be necessary for the claimants to provide firm evidence that it is a disguised donation and that the contractual will was different from the materialized one, as established in the judgment of 22 January of the Provincial Court of Cáceres.
In addition, if a son accepted the document made by the spouses together with his siblings and in the presence of all of them, including the plaintiff, and they were all the ones who signed the document in which the collated assets appear, claim their ineffectiveness is contrary to good faith, according to a judgment of the Court of Valencia, of November 26, 2008.
There is even jurisprudential recognition of agreements in which a fiction of sale of hereditary assets has been established, since all the care conditions typical of a life contract were met, as explained in a sentence of February 18, 2008, of the Provincial Court of Córdoba.
Changes in needs
The feeling of rejection is quite widespread, because today such limitations no longer have the traditional support of a family that maintained the parents’ entire lives as a nucleus of reciprocal protection.
The situation that inspired this regulation is that parents were respected and cared for by their children until death, which occurred in the family environment and in the parental home, where the deceased was watched over. Now, however, let us think of a person who divorces and remarries at 45 and dies at 85, they will always be closer to the second family than to the first, especially if the last spouse and the children of this relationship take care of him in recent years.
possibility of disinheriting
In the common regime, parents can disinherit their children only for denying them, without legitimate reason, food or for having mistreated them by deed or seriously insulted them by word of mouth.
The children, for their part, can disinherit their ancestors for acts of indignity, such as assaulting them or their spouse or forcing them to prostitute themselves; if they have been denied food, without legitimate justification, or have attempted against their life.
Finally, one spouse can disinherit the other, only if they seriously or repeatedly fail to comply with conjugal duties (which, from a strictly civil point of view, can be summarized as the obligation to respect and help each other, act in the interest of the family, live together, keep fidelity and help each other); that the causes for said spouse to be deprived of parental authority have concurred; deny support to children or the other spouse; or attempt against the life of the testator spouse, if there is no subsequent reconciliation.
Among them, art. 1,056 of the CC that gives flexibility to the system for the benefit of the conservation of the company, and those of articles 841 to 847 of the CC related to the payment of the legitimate in non-hereditary cash.
The protection system also entails the prohibition of waiver agreements of the legitimate (art. 816 of the CC). However, little by little, avenues of freedom have been opening up, which mean that legitimate freedom is sometimes a serious impediment to the balanced distribution of wealth, and a movement to reduce it has begun.
The basis of these claims is in art. 33 of the Spanish Constitution that establishes that “the right to private property and inheritance is recognized” and that only the social function of these rights will delimit their content, in accordance with the laws.
For a multitude of lawyers, judges and notaries, this social function has changed and, therefore, it is necessary to adapt the regulations. Thus, for example, the magistrate of the Supreme Court Javier O’Callaghan, in numerous public interventions, has pointed out that “when the issue of legitimacy arises, the children can be 60-year-olds, or 50-year-olds, who are supposed to be With which, the right, which was considered an inviolable, untouchable, inalienable right, of the legitimate of the children, no longer has a reason to exist. It does not fulfill a social function”.
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