VOCACIÓN HEREDITARIA, PERSONALIDAD Y CRIATURAS ABORTIVAS: LA REFORMA DEL ARTÍCULO 30 DEL CÓDIGO CIVIL E INCIDIENCIA DE LA ELIMINACIÓN DEL REQUISITO DE LA VIABILIDAD EN EL RÉGIMEN DE LA CAPACIDAD DE SUCEDER POR TESTAMENTO O ABINTESTATO.

Abstract

Article 744 of the Civil Code outlines the basic rules on capacity to succeed. These basic rules are specified more fully in the following article, 745, which addresses cases of absolute incapacity to succeed and declares that certain legal persons and "abortive children, understood as children who fail to meet the circumstances expressed in article 30", are barred from succession. Therefore article 745, which refers us back to a previous article, invites us to reflect upon the impact of new developments under the Civil Registry Act as regards capacity to succeed under a will or without a will. Account ought to be taken of the fact that the generous three-year vacatio legis does not affect the article, since the article took effect on the day following its publication in the 22 July 2011 issue of the Boletín Oficial del Estado. One particular rule amended by Act 20/2011 of 21 July on the Civil Registry is article 30 of the Civil Code, rephrased under Final Provision Three of the act to read, "Personality is acquired at the time of live birth, once there has been full detachment from the mother's womb". The requirement of viability has now been eliminated. This paper reviews the main lines of the reform and its impact on the right to accept an inheritance, the capacity to inherit and the case of the successor's survival past the death of his or her predecessor.