The lack of effective coexistence of the coexist in the regime of a stable couple (and of the spouse) as a cause of survived inefficiency of the heir institution.
Judgment 539/2018, of September 28, of the 1st Chamber of the Spanish Supreme Court, for a case subject to civil law, on the ineffectiveness of the institution in favor of the spouse in case of divorce between him and the testator, transfers us to the analysis of its normative, constitutive and executive aspects.
1) Normative aspect
In Spanish civil law the lack of a specific rule governing the complaints has allowed the Supreme Court to resort to the notion of “expression of a false cause for the institution of heir or the appointment of legatee” or mental composition that without the condition of spouse, maintained at the time, the testator would not have made the institution, in accordance with article 767.1 of the Spanish Civil Code, to annul the institution of heir.
In Catalan law, there is the legal presumption of revocation of the institution of heir in cases of rupture of marital cohabitation and, in this sense, article 422-13 of Law 10/2008, of July 10, which approves the fourth book of the Catalan Civil Code, relating to successions, states that:
“1. The institution of heir, bequests and other provisions which have been ordered in favor of the spouse of the plaintiff become ineffective if, having been granted, the spouses are separated de facto or de iure, or it is a divorce, or the marriage is declared null and void, as if at the time of death a claim for separation, divorce or marriage annulment is pending, except for reconciliation.”
This presumption of ineffectiveness was established in Catalan law by article 132 of Law 40/1991, of December 30, Code of successions due to death in the civil law of Catalonia.
The fourth book extended the presumption of ineffectiveness to the cohabitants in a regime of stable couple, and so, paragraph 2 of the aforementioned article 422-13 states that:
“The provisions in favor of the cohabitant in a stable couple become ineffective if, after being granted, the cohabitants are separated de facto, unless they resume their cohabitation, or the union is extinguished for a cause that did not follow the death of one of the members of the couple or both of the marriage.”
For both situations, marriage and domestic partnership, the third section of the same paragraph 13 of article 422, adds that “provisions in favor of the spouse or cohabitant in a stable couple maintain the effectiveness if from the context of the will, the codicil or the testamentary memory it results that the testator would have ordered them even in the cases regulated by sections 1 and 2.”
Consistently and, in a complementary manner, section 4 of the precept concludes that “this article also applies to relatives who are only from the spouse or cohabitant, in direct line or in collateral line within the fourth degree, both by consanguinity or by affinity.”
2) Constitutive aspect: granting of the will
In testing, the future causer must be duly illustrated by the legal consequences of the hypothetical future severance of cohabitation with the spouse or partner to whom he attributes the character of heir or legatee, in order to measure, among others, these possibilities:
1.- In a later will he can turn everything upside down, but it can also be impossible to grant it, so it is advisable to design his current disposition as if it were the final one, so that if he does not have absolute certainty of the uninterrupted continuity of the cohabitation until the moment of its death, establishes the pertinent substitutions.
2.- If you really want the favored person to be the heir or legatee even in the event of a break-up of the cohabitation, you must express it clearly.
3.- If you think that there could be any doubt in the demonstration or proof of the cessation of cohabitation, singularly in the case of de facto couples without chronological solidity, you can establish a presumption of proof of the existence of cohabitation, for example providing that “the uninterrupted continuity of cohabitation shall be deemed to have been fulfilled if it is not contradicted by a notarial deed of notoriety granted within certain months from the death”, or that it will not be understood to have been fulfilled if it is not accredited with this type of notarial deed within a certain period.
4.- Despite being a legal condition, it is still more informative for all interested parties, causing, heir or legatee and expectant third parties, the establishment of real cohabitation as a condition precedent to the effectiveness of the provision.
3) Executive aspect: effectiveness of the institution of heir or legacy
The legal operator that has to document the succession acquisition will need the proof or evidence of the rupture or cessation of cohabitation, which will be clear in cases of divorce, marriage nullity or litigation, but may not be in separations de facto of unmarried couples, or in couples who maintain a confused cohabitation (it may have even ceased the legal regime of a couple, unilaterally and notoriously).
For cases of lack of clarity, the usefulness of the aforementioned notarial deed or other type of evidence that may be established by the same causer (changes in registration, continued residence in a different place, for example) will be evident.
The will of the disposer, the main rule of succession, the expression of the civil liberty of the person, his real and effective consent, duly informed, must take command in the field we are analyzing, as in so many others.