REVISIÓN CRÍTICA Y PROPUESTA LEGE FERENDA DEL CONCEPTO DE LEGADO DE PARTE ALÍCUOTA: CUESTIONES CONTROVERTIDAS SOBRE SU POSICIÓN EN EL REPARTO HEREDITARIO, LA JURISPRUDENCIA DEL TRIBUNAL SUPREMO Y LA DOCTRINA DE LA DIRECCIÓN GENERAL DE LOS REGISTROS Y DEL NOTARIADO.

Abstract

A legatee who is left a proportional share of an estate stands in a tricky legal position with respect to the distribution of the estate; because the legatee is entitled to an abstract share in the assets of the estate (more specifically, its liquid assets), the estate distribution process must be performed before the correct portion can be assigned to the legatee. The difficulty of the situation’s thornier aspects may be chalked up to regulatory lacunae in our Civil Code, whose section on bequests and inheritances does not even mention such matters. The most the Civil Code does is make an unfortunate negative reference to the concept in article 655, as pertains to the reduction of gifts. While the Act on Civil Procedure, the Mortgage Act and the Mortgage Regulation all contain more-generous references, the legislative panorama quite logically leads legal thought, case law and, fundamentally, the DirectorateGeneral of Registries and Notarial Affairs to entertain dark doubts about the admissibility of the inheritance of a proportional share. The similarities between the inheritance of a proportional share and the naming of heirs make for just as many scholarly and judicial controversies. The authors have thus considered it necessary to devote a few pages to debate over the admissibility of the inheritance of a proportional share. The unequivocal existence of the concept is ultimately accepted, in line with a Supreme Court ruling giving its definitive seal of approval, whereupon the authors offer a lege ferenda proposal defining the inheritance of a proportional share.