Civil Code generates changes in inheritances and successions
This code, since 2016, which, according to specialists, is more modern and adapted to current times, generates many changes in different key areas of life. One such change has to do with inheritances and successions.
Regarding the issue of inheritances, there will also be some changes. But what is an inheritance? It is a set of assets and debts that a person leaves behind when they die. If the debts exceed the value of the assets, the heirs do not have to pay that difference from their estate.
The inheritance system has two edges: one can establish in life who will be their heirs through a document that must be executed before lawyers or notaries called a will. The other system is the one established by law, which indicates who inherits it, without being able to modify it by means of a will.
In our country, the Civil Code, which regulates inheritance, combines the two systems.
From these two systems, three types of heirs are generated:
1) Forced heirs, who cannot be deprived of the inheritance by means of a will because the law does not allow it. They are the children, spouse, and parents of the person who dies.
2) Non-forced heirs who inherit if there are no forced heirs or will. They are other relatives up to the fourth degree, such as siblings, nieces, nephews, uncles, and cousins.
3) Testamentary heirs are those to whom the deceased person left assets through a will.
The Argentinian system, when combined, allows a will to be made; However, what it does not allow is the disinheritance of a forced heir.
The law sets certain limits:
(1) If the forced heirs are the children. The will that can be made must be limited to one-fifth of the total assets. Thus, if the inheritance is equivalent to 100,000 pesos. The will can be made up to the amount of 20,000 pesos.
(2) If the heirs are the parents, or one of them, the will made must be limited to one third of the total assets of the estate.
(3) If the heir is the spouse, the will must be limited to half of the estate’s assets.
(4) If the heirs are the non-forced heirs, the will may cover all the assets of the estate.
With regard to successions, the new Civil Code expressly establishes that from the death of the deceased the heirs have all the rights and actions that the deceased had, in an undivided manner, with the exception of those that are not transferable by succession – such as very personal rights – and are the owners of everything that the deceased possessed.
The debts of the deceased are paid with the assets of the inheritance, only, and not with the assets of the heirs, so the figure of the “acceptance of the inheritance with benefit of inventory” is eliminated, that is, the inheritance is accepted on the condition that the estates of the person who has died and the one who inherits it are separated.
The novelty is that the bidding process is incorporated into the successions, this means that since the application of the new legal body, any of the heirs can request the bidding of any of the assets of the inheritance to be awarded within their offspring for a value higher than the appraisal. if the other heirs do not exceed your offer.
Now, in order to acquire a hereditary asset, we will find ourselves as when we tender a car for which we have been paying a monthly savings plan.
It also innovates with respect to the incorporation of marriage in extremis. The marriage of the person after dying to the person who cared for him, to cite an example. This new institute tends to prove that the marriage was not intended to capture the inheritance.
The proportions of the legitimate of forced heirs are modified – in the old code. Although in force until the end of next year, the portions that cannot be disposed of by will. For example, because they correspond to our children, parents or other relatives of ours are: to descendants 4/5 parts; the ascendants are 2/3 and the spouse is entitled to one-half.
These portions are increased to each of them, namely: to descendants, i.e. to children or grandchildren who concur in the inheritance by right of representation, it is modified from four-fifths to two-thirds of the entire inheritance; With respect to the ascendants of two-thirds, it passes to a half, as well as the spouse who continues to withdraw his fifty percent of the inheritance.
With respect to the spouse who is not an heir, he/she attends the succession as a “partner” to withdraw his/her part or half of the marital property that he/she owned in common with the deceased.
In this order of ideas, we see that the “offspring of the heir with a disability” is improved. Who are protected from this point of view due to the disadvantage compared to the other heirs who can acquire assets by their own means. Even providing for the figure of the trust for their benefit.
We see that the figure of the testamentary trust is regulated. Totally new for our law, but imposes on it the duty to respect the legitimate portion of the forced heirs, which we have already referred to.
What we see in some movies where a person leaves his or her entire estate to another by will. Is not possible in Argentina. Neither in the old Civil Code nor in the new one; The right to inheritance of children, parents and spouses is respected.