DETERMINACIÓN DE LA LEY PERSONAL DEL CAUSANTE: NOTAS SOBRE LA RECUPERACIÓN DE LA VECINDAD CIVIL POR RESIDENCIA Y EL ALCANCE DE LA INCONSTITUCIONALIDAD SOBREVENIDA DEL PRINCIPIO DE UNIDAD FAMILIAR.

Abstract

In a state such as ours, where there is a plurality of legislation, the law applicable to a given person is found, as declared by article 14.1 of the Code, by that person's legal residence. This subjection either to common or to special or regional law implies, as is well known, subjection to the rules on succession applicable under the personal law for the decedent at the time of his or her death. In pre-constitutional times, the fundamental criterion for assigning legal residence was the family unit. Therefore the law applicable to the person of the husband was also the law that proved applicable to hereditary succession at the death of the wife. With the entry in force of the Constitution, the applicability of this principle (under which the law for the husband determined the law for the wife and for the children in potestate) needed to be revised. Therefore the Constitution abrogated the principle due to its discriminatory nature, and thus the judge ordinary holds the legal standing to declare the rule repealed due to supervening unconstitutionality. These are the lines along which is aired the constant line of case law maintained by the Supreme Court and the scope of the acquisition of legal residence due to continuous residence without opposing declarations, insofar as pertains to finding the personal law for the decedent.