In order to save my share of inheritance from any creditors I have, my father has excluded me from his will, leaving his assets to my sister, my mother, my daughter (her nephew) who will have to take charge of my maintenance.

In doing so, of course, my legitimate share is damaged. My question is therefore the following: only I, the delegitimated, can I act judicially to demand the reduction of the legitimate or can my creditors do so?

 

As you know, a parent can not exclude his child from the right to obtain a share of inheritance: in fact, to protect the general interest in family solidarity, our legal system provides that the closest relatives of the de cuius have the right to obtain, even against the will of the deceased and in contrast with the deeds of testamentary dispositions established by him, a portion of the value of the inheritance and of the assets donated to life by the deceased himself (right of legitimacy or reserve).

Often, however, in an attempt to avoid (or at least make it less likely) the possibility that the legitimate debtor may suffer the expropriation of assets that would be entitled to be inherited by his creditors, the solution is identified in the exclude it with will, given the renunciation by the legitimate debtor himself to exercise judicial action aimed at restoring the infringed right.

Unfortunately, however, articles 2900 and 2901 of the Civil Code provide that the creditor may request that the deeds of disposal of assets with which the debtor is prejudicial to his own reasons are declared ineffective. In particular, Article 2900 recites the creditor, to ensure that his or her reasons are met, may exercise the rights and actions that are due to third parties to his debtor and that he neglects to exercise, provided that the rights and actions they have patrimonial content and they are not rights or actions which, by their nature or by law, can not be exercised except by their owner.

In this case, the creditor could ask for the revocation of the act by which, by granting full adhesion and acquiescence to the testamentary dispositions, the legitimate debtor had renounced to promote against any other heirs testamentary any reduction action for damage of legitimate share. Or even proceed on behalf of the legitimate debtor himself to restore the damaged hereditary share.

In other words, if there is an inertia of the legitimate debtor with respect to the judicial action aimed at obtaining the right to the portion of inheritance that is due to him, the conditions established by the Civil Code are fulfilled so that the creditor can act in the reduction action inheritance subrogated to the legitimary.

Let it be clear that the creditor is not always prepared to anticipate legal costs to venture into a complicated legal action: everything depends, as always, on the amount of credit and the value of the assets to which the rightful debtor is entitled to the outcome of the surrogate reduction action.

Any possibility of escaping the action eventually promoted by the creditor, however, exists: suppose that the rightful owner was left the right of habitation of a property owned by the deceased. The debtor then writes the article 551 of the civil code according to which, if a legitimary is left a legacy in place of the legitimate, he can renounce the legacy and ask for legitimacy. In a few words it is necessary the prior renunciation of the debtor son to the right of habitation, arranged for will, to claim the lesion of the legitimate share.

Now, can the creditor subrogate to the debtor’s debtor’s son to request the renunciation of the right of residence pursuant to Article 2900 of the Civil Code? No, because the same article mentioned above also establishes that the creditor can replace the debtor heir provided that the rights and the shares have patrimonial content and they are not rights or actions that, by their nature or by law, can not be exercised only by their owner.

In short, the revocatory action would be inadmissible in relation to the act of acceptance of the right of residence in replacement of the legitimacy share since it would be subject to the prior waiver of the right of residence exercised by the debtor who acquired that right. Neither the renunciation of the right of residence could be requested by the creditor in subrogation of the debtor (Court sentence 4005/2013).

 

 

But if the person who inherited the entire property sells it later, in what position would the debtor who has the right of residence against his creditors be located? Alfonso Nigro

The debtor in respect of his creditors would be in the same position he had before the sale of the house on which he has the right of residence: in practice, creditors will have to find other ways, different from the execution of real estate (foreclosure of the current account, salary , for example) to satisfy their legitimate claims, since the right of residence is not distrable (unlike the usufruct).

Moreover, and only incidentally, it should be added that the right of residence does not end with the sale of the house: it is a real right transcribed in public real estate registers. In essence, those who buy the house, unless agreed with the person who holds the right of residence, can not occupy it until the death of the latter.