La liquidación de la sucesión ante la situación de crisis económica
Autor/a:
Mónica García Goldar.
Director/a:
María Paz García Rubio.
Año: 2018
This thesis, entitled “Inheritance liquidation in face of the economic crisis”, is a research study carried out in the field of Succession Law that focuses on the weak points of the hereditary debts liquidation, some of the which have been especially highlighted by the economic recession.
Inheritance law is, as we know, a transversal legal field that affects practically all areas of civil law: personal or family law are the sectors that are easily associated with succession. It is precisely the area of succession in the obligations of the deceased that generates the most controversy in contemporary practical reality. Suffice it to imagine the many people who are deeply indebted today to understand the important impact that the economic crisis has had on succession. It is not surprising, therefore, that the repudiation of inheritances has increased so much in recent years, as indicated by official statistical data and the main national media.
Furthermore, sometimes it is not even the direct or manifest debts of the deceased that generate a passive inheritance, but rather those derived from the provision of guarantees in favor of third parties, or those related to civil liability manifested time after the death of the deceased, as well as the tax debts or those derived from the commercial operations of the deceased. Precisely because notaries and other legal operators have revealed the “dangers” inherent in this type of hidden or unknown debt, we have thought it was convenient to carry out an in-depth study of the issue as the object of our doctoral report.
In effect, the unknown or supervening hereditary debts are those that the heir does not know or could not have known at the time of acceptance, such as the execution of a guarantee that the deceased had granted in favor of a third party or the compensation derived from civil liability claimed after his death. The consequences that they have for fiscal and civil purposes are also analyzed and the national and comparative solutions that can be applied to this problem are detailed. Finally, the foundation of the ultra vires liability principle is questioned, proposing, de lege ferenda, that either the legislator limits the liability of the heir for debts or, at least, foresees an ad hoc solution for the assumption of debts unknown, as the French and Dutch legislator has already done.
Inheritance law is, as we know, a transversal legal field that affects practically all areas of civil law: personal or family law are the sectors that are easily associated with succession. It is precisely the area of succession in the obligations of the deceased that generates the most controversy in contemporary practical reality. Suffice it to imagine the many people who are deeply indebted today to understand the important impact that the economic crisis has had on succession. It is not surprising, therefore, that the repudiation of inheritances has increased so much in recent years, as indicated by official statistical data and the main national media.
Furthermore, sometimes it is not even the direct or manifest debts of the deceased that generate a passive inheritance, but rather those derived from the provision of guarantees in favor of third parties, or those related to civil liability manifested time after the death of the deceased, as well as the tax debts or those derived from the commercial operations of the deceased. Precisely because notaries and other legal operators have revealed the “dangers” inherent in this type of hidden or unknown debt, we have thought it was convenient to carry out an in-depth study of the issue as the object of our doctoral report.
In effect, the unknown or supervening hereditary debts are those that the heir does not know or could not have known at the time of acceptance, such as the execution of a guarantee that the deceased had granted in favor of a third party or the compensation derived from civil liability claimed after his death. The consequences that they have for fiscal and civil purposes are also analyzed and the national and comparative solutions that can be applied to this problem are detailed. Finally, the foundation of the ultra vires liability principle is questioned, proposing, de lege ferenda, that either the legislator limits the liability of the heir for debts or, at least, foresees an ad hoc solution for the assumption of debts unknown, as the French and Dutch legislator has already done.