FUNCIONALIDAD DE LA SUSTITUCIÓN EJEMPLAR EN EL DERECHO SUCESORIO COMÚN. PROPUESTAS DE REFORMA.

Abstract

Article 776 of the Civil Code regulates what is known as sustitución ejemplar, or exemplary substitution, whereby a person (the substitutor) can name a substitute for his or her descendant (the substitutee) who is fourteen years of age or older and lawfully declared mentally incompetent. This is a concept of Roman origin that arose as an imitation or example of what is known as pupillary substitution. The regulation of this concept being so laconic, several problems are left unaddressed. The first, and that of greatest dogmatic significance, is the objective sphere of exemplary substitution, i.e., what assets it can encompass. Since the Civil Code went into force two postures have been maintained in Spanish legal doctrine. The first is termed «the broad thesis», and it considers that the substitute's appointment spans the entire estate of the substituted descendant (Here exemplary substitution is regarded as a will made by the substitutor on behalf of the substitutee). In the second, the substitute's appointment covers only the portion of the substitutor's estate to which the substituted descendent is heir; it is therefore known as the «restrictive thesis». Both theories have arguments backing them up. Case-law has not chosen one or the other (Only one Supreme Court sentence inclines toward one of them, the restrictive thesis, and it is only one sentence). This article sustains that the «broad thesis» is the more suitable and advisable, for it is the thesis that better allows exemplary substitution to fulfil the function attributed to it in the modern world: to ensure for parents an instrument for organising the succession of their incompetent child, who cannot make a will of his own due to his incompetence, and to do so in the fashion that best looks after the child's interest. Exemplary substitution, then, is attributed a materially oriented function that is more than merely preventing an intestate situation. In the author's opinion, by delimiting the objective sphere of substitution as it does, the «broad thesis» consolidates substitution as an instrument that parents can use, for example, to stimulate certain persons or entities to take care of their incompetent child after they have died (with the especially intense, dedicated assignment of caring for the incompetent child). Notwithstanding the academic discussion on which thesis ought to prevail, legislators could clarify the question, given its indubitable practical importance. They might also revise the circle of substitutors, which is perhaps excessively wide as currently regulated, where any ascendant relative can order exemplary substitution. As soon as exemplary substitution is regarded as an institution at the service of the incompetent, the circle of persons who can make use of it ought to be restricted to those who ordinarily bear responsibility for the incompetent child, i.e., the child's parents or guardian. There are other shadowy points of the legal rules governing this institution that it would also be advisable to clarify. This article explains what interpretative options are possible and which prove most appropriate, depending on the function that exemplary substitution is given.