Împărţirea moştenirii între soţul supravieţuitor, ascendenţii privilegiaţi şi un colateral privilegiat instituit legatar universal
Division of inheritance between the surviving spouse, privileged dependent relatives and a privileged heir of a collateral subclass established as residuary legatee

Summary/Abstract: This study is intended to settle a matter of law of succession which represented a constant source of controversy in the light of the Civil Code of 1864 and which tends to claim the same quality as well, in the light of the new Civil Code: how is the inheritance divided when the surviving spouse claims rights over it together with the privileged dependent relatives and a privileged heir of a collateral subclass being established by the deceased as residuary legatee? Beforehand, the study briefly reviews the settlement proposals advanced in the light of the Civil Code of 1864 and critically describes the solutions provided by the doctrine in the light of the new Civil Code. During the first stage, there are reviewed the rules underlying the method of calculation of the inheritance reserve, namely whether in relation to that calculation all individuals who might have specific vocation in the absence of gifts and disinheriting should be taken into account or only those individuals who actually come to succession even in the presence of gifts and disinheriting, preserving their concrete vocation. The conclusion shall be in the sense of acknowledging the second way of calculation. During the second stage, the concepts of general vocation and concrete vocation are defined, as well as their relationship towards the right of inheritance. Hence, it is concluded that the inheritance right involves the fulfilment of three conditions: (a) inheritance capacity, (b) the individual claiming to be an heir should not be unworthy and (c) a concrete vocation, these being all the necessary and sufficient conditions. During the third stage, it is demonstrated that the title of heir is not conditional on actually acquiring a portion of the inheritance, but only on meeting the requirement of the concrete vocation, which involves, among others, that the concerned individual should not have been disinherited completely and effectively. Finally, the case under discussion is given the following solution: the wife picks up the reserve of 1/6, each of the privileged dependent relatives picks up a reserve of 1/12, and the sister picks up a reserve of 2/3 of the inheritance as a legatee, however, she acts as well in the capacity as legal heir – which allows it to be taken into account upon calculation of the succession reserves, thus, increasing the available share which she picks up as legatee.

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