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Mortis causa liability
Jul 28, 2017

The recent death of Miguel Blesa has immediately put the spotlight on his heirs. I therefore believe that it will be of interest to raise awareness of the liability system. mortis causa and an opinion on the advisability of reforming it. With nuances, since in our country there are seven different legislative systems in succession, Spanish law is based on the continuity or sub-entry of the heir in the position of the deceased, without a prior liquidation procedure of the inheritance. Although it is true that the first thing to do is to pay rather than inherit and that there is some right of separation in relation to the debts of the deceased - as in the reverse mortgage -, the reality is that, in general, the heir confuses his own assets with those of his heirs. In this context, the payment of compensation arising from non-contractual liability, like all those that are not of the personal nature of the deceased (article 659 of the Civil Code, for Mr. Blesa's estate) are, in principle, the responsibility of his heirs. This has been recalled by the Supreme Court, among others, in its ruling of 7 May 2014. The successors will therefore, in principle, be liable, ultra viresIn the same way, they are subrogated to the passive procedural position of the deceased for civil actions that have already been initiated. In the same way, they are subrogated to the passive procedural position of the deceased for the civil actions already initiated, extinguishing the criminal actions by death and therefore the future civil actions linked to these that do not allow independent action of a civil nature. Therefore, in the of course Blesa, which we take as a practical case, the heirs who do not renounce the inheritance are liable for the debts resulting from a final judgement, but only to a limited extent. intra vires Those who accept with benefit of inventory will do so. By heir we must understand the one designated in the will and in his absence the legal heirs -in the specific case, children-. The spouse is not an heir but a legitimated beneficiary in usufruct and in the event of a will, he/she will normally be a legatee and will not be liable. mortis causa with their personal assets.

Creditors, any of them who have a firm and individualised title, may, after the expiry of the time limit, apply to the heirs through a notary. tempus lugendi - the 15 days required to obtain the certificate of last will and testament - to decide whether they accept or repudiate the inheritance and whether they do so for the benefit of the inventory. The latter must decide within a period of thirty calendar days, a decision that may be different for each heir who is of legal age and capable. If they do not do so, pure and simple acceptance is presumed. In the situation we are analysing, the possible plurality of creditors will require their heirs to adopt a civil strategy. The children -in the most common case- will therefore be able to individually renounce the inheritance or, if their interests so advise, accept under inventory, to avoid the contamination of estates. Law 15/2015, modified the procedure by which the benefit of inventory can be obtained, according to which it must be requested by the heir - individually - within certain time limits, different according to whether or not they have the assets of the inheritance in their possession, extending, if there is no interpellation and they do not possess the assets until a legal action is filed against the heir within a maximum period of thirty years. In practice, this poses difficulties. As a limit, assets awarded to the spouse in the event of liquidation of the marital partnership are not liable (it is to be assumed that Mr. Blesa was married under a separation of property regime); legatees will only be liable to the extent of the value and indemnities from life insurance, as well as certain financial products, subject to the applicable law of their issue - Spanish or of another State - will not be liable, insofar as they are not received in title. mortis causabut random inter vivos, even if the fact of death is guaranteed.

This description of the liability system mortis causa The current situation highlights the need for legal reform. Irrespective of the civil liability arising from a criminal offence, which has certainly been analysed in detail in the case of a suicide decision, the general effect of succession must be highlighted. mortis causa of any liability arising from the professional or commercial practice of the injurer, which is inexplicably aggravated for architects and which extends, for example, to membership of an administrative body in a company, since the liability of Boards is, in general, collective - even in the case of new obligations compliance-. In these cases, the personal assets are contaminated if the compulsory inventory procedure is not initiated, except for minor or disabled heirs. In the case of Mr. Blesa, his heirs can be alert to what may occur to them, but in others the liability appears after the death of the deceased, in the period, from 7 October 2015, of five years, the general limitation period for obligations, although with a transitional regime for those contracted before, which was fifteen years.

It would therefore be urgent for the legislator to understand that children do not have to pay for the possible sins of their parents unless they are themselves imputable.