Translation of the article published in Catalan in the newspaper El Punt, section Opinió, 13th June 2009.
The Catalan Succession Code of 10th July 2008, enforced since the 1st January 2009, culminates the process of suppressing two secular institutions, by establishing in article 411-8 that “assets acquired by succession or by donation title in accordance with this code they are not subject to any hereditary reservation or legal reversal”.
In the Spanish Civil Code subsist two reservations and a legal reversal: the linear reserve, the binuptial reserve and the reversal of donations, institutions in which the origin of the goods is adhered to avoid a not wanted foreseeable destination by the person from whom they come, and thus the law “presumes”, if the interested party does not establish the contrary in a will or donation, in the linear reserve if a child (or descendant or brother) inherits from the father or mother (or from an ascendant or from a brother) and the other parent inherits this same asset due to the death of the child, the close relatives of the deceased father or mother, the ascendant or the brother (within the third degree and the line of origin of the assets) must be preferred to the surviving parent; in the binuptial reserve, the children of a first marriage have the right to recover the goods that the widow has received free of charge from the spouse, in case that they marry again or have or adopt another child; and in the reversal of donations, if a child or descendant, to whom the parents or ascendants donate an asset, dies without descendants, these parents or ascendants re-acquire the property.
The reservation is an expression of the trunk criteria, the preference of the lineage related to the origin of the goods and, despite criticism, subsists in many laws in order to uphold the will of the people and legislators, and the civic common sense.
In the Catalan system, the linear reserve and the reversal of donations disappeared in 1987, while the binuptial reserve has been eliminated by the current code of 2008. Moreover, the difficulties in activating the rights of the reserves or those favored by the institution, it was added the discriminatory impossibility of extending the reservation in cases of a new non-marital union, in the form of a couple, regarding the rights of the children of previous unions in cases of subsequent de facto unions of the father or mother. Once the reservation has disappeared, only remains as a “trunk” expression the assumption of intestate succession of the deceased pre-pubescent (under fourteen years, minimum age to testify), of article 444-1 of the current code, expressing that the goods from a parent, or relatives of this, within the fourth degree, the closest relatives of the pre-pubescent are called to the succession, within the fourth degree in the line from which the assets come, excluding, therefore, the other surviving parent. Limited to the case of the deceased under 14 years old, we have here drawn the triangle of the linear reserve of the Spanish Civil Code; this case could happen, for example, in the case of an accident resulting in death of the father or mother, the child and the other parent, in a different time (perhaps hours or minutes), with the result (in the absence of testamentary provision against the father or mother who dies first, regarding the substitution of the heir son who survives him and who dies before the other parent) that the assets from the pre-deceased parent pass to the relatives of the other parent, strangers to the lineage of origin.
It has been argued that the widow reservation limits the freedom of the widow, or that it means a discrimination against the children of the second or subsequent unions. I think they are unfocused reasons, because it is essential to respect the free will of the person from whom the goods come. Each one can conscientiously assess the extent to which he accepts that the property he owns can be transmitted, through who may have been his spouse or partner, persons affectively linked to this, or their descendants, by virtue of subsequent relationships to his death, and with the prevention that the affectivity can be as real and permanent as sporadic, fictitious or interested. The marriage or the couple is broken, inexorably, with the death of one of its members. The survivor steps on a new stage, despite the strength of the memory of a time gone by. And as for the children of later unions, it doesn’t make sense to see discrimination in expectations about assets from a stranger.
If the reserve and the trunk are still alive everywhere, and if they have been enforced for so long in our country, it is because life presents situations that the most frequent testamentary will doesn’t resolve satisfactorily. And if the current law doesn’t cover the regulation in a singular way, we need to try, when making a will, to take into account all possible factors, and calculate the relevance of measures such as granting the children of the spouse or pre-deceased partner a right of first acquisition (with price moderation, if necessary), in cases of transmission to third parties, by the survivor, of assets acquired by this by inheritance or by donation of the first (whether or not this third is the new partner), or to establish residue trusts so that some assets (or at least those not disposed of) pass, upon the death of the survivor, to the descendants of the pre-deceased, and other possible ones.
For the notary or jurist, and with the formula of “duly informed will”, it is such inappropriate to suggest the establishment of ties by a testator determined to provide maximum liquidity to the spouse, partner or friend, in any case, as well as not interpose five minutes of reflection to those who, wrapped in claudicant caresses, plan to relocate a heritage, large or small, from Campllong to Camagüey, for example, if I may be allowed this transoceanic license.
It is not necessary to understand the reasons of affection and love, but it is convenient to reason, with freedom and information, the temper of the rights that are connected with.