THE DIVISION OF INHERITANCE. A SPECIAL LOOK AT ITS CONSTITUTIVE EFFECT
THE DIVISION OF INHERITANCE. A SPECIAL LOOK AT ITS CONSTITUTIVE EFFECT

Summary/Abstract: The purpose of the partition of the estate is to put an end to the state of undivided inheritance which has arisen following the debate on the deceased’s estate and the issue of the certificate of inheritance or, where applicable, the finality of a court decision. Whether it is done amicably or by court order, partition now has constitutive effects. The discussion of this issue is of particular practical interest, since, prior to the entry into force of the current Civil Code, partition had declaratory, and therefore retroactive, effects from the moment the inheritance was opened. However, de lege lata, partition only produces future effects, which has important practical consequences. For example, with regard to an asset acquired by inheritance and assigned to an heir in exclusive ownership by partition, it will be specified, from the point of view of the mode of acquisition, that a share of it was acquired by inheritance, retroactively, from the date of the opening of the succession of the person who owned it, and the remaining share was acquired by partition, from the date specified in Art 680 Civil Code. As a result, the tax due in the case of transfer of ownership of, or dismemberment of ownership of, such property will be calculated differently, taking into account the date of acquisition of the shares.

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