The conditions related to marriage in the institution of an heir

Abstract

Article 790 of the Civil Code allows for the granting of testamentary provisions, both universally and privately, subject to certain conditions. The efficacy of the institution of an heir and of the legal arrangement of a bequest can be rendered contingent upon events of a very varied nature. Of particular note are the conditions linked to the personal circumstances of the beneficiary, such as whether he or she marries or not. Traditionally, these conditions have been the subject of doctrinal debate, as it has been suggested that their legality is questionable insofar as they may affect one's freedom to marry. Nothing could be further from the truth, since the grantor of a mortis causa provision, just like an inter vivos donor, is free to render his bestowal - without prejudice to the forced heirship principle existing in our Legal System - contingent upon whatever circumstances he or she deems opportune, provided that they do not exceed the limits of possibility, or legality; and do not transgress the accepted moral standards indicated in our Civil Code.

This work aims to examine in depth these types of conditions, which continue to be imposed today, and to ask whether the Code, in its formulation, might include others that, at the time of its drafting, were not accommodated by our civil legislation.