Closest equivalent rights and adaptation

1. What are the main rights in rem arising from successions in your system?

We remark:

a)    Reserved portion of the descendants legítima:

As we have mention, legítimas decedent’s freedom of disposal is limited to a certain stake of the estate as there are legally reserved portions for the closest relatives. Legítimas cannot be considered strictly as a real right, as they exclusively imply the right of the beneficiaries to a certain share of the estate which has to be paid specifically by goods which belonged to the decease. However, partition is not valid without beneficiary’s agreement, event in the event that they were not called as heirs or legatees by the decedent. The acceptance or refusal of each reserved portion can only be done upon the decedent’s death and no preventive refusal is accepted.

The reserved portion of children and descendants is 2/3 of the estate: 1/3 has to be equally distributed and the other 1/3 can be freely distributed among the descendants. In case that there are no descendants, parents reserved portion arises. It will consist of ½ of the estate, unless they concur with the surviving widow, in which case it shall be one third of the estate.

In Spanish civil law, there are no bloodline linked goods.

In regional legislation we find some specifics on legitimas or reserved portions with respect their nature or average[1].

b)    Rights of the surviving spouse (usufruct):

In contrast, the legitime of the surviving widow is a proper real right. It consists in the usufruct of 1/3 of the estate when concurring with descendants or ½ when concurring with ascendants, or 2/3 of the estates when no concurring with none of them.

There also are regional specifics as for surviving spouse rights[2].

c)    Testamentary trusts (fiduciary substitutions)

A testamentary trust or fiduciary substitution is the call of an heir with the charge to preserve and transfer all or part of the estate to a third party. It is only valid as long it does not go beyond the second degree kinship or generation or if the last beneficiary is alive at the time of the testator’s death. The beneficiary acquires his rights from the moment of the decedent’s death all though he would not survive the trustee. In this event, the rights of the beneficiary are transfer to his heirs. The fiduciary trustee is obliged to deliver the estate, without other deductions than the legitimate expenses, credits and improvements, save as otherwise provided by the testator. Fiduciary substitutions may never encumber the forced share of the estate, unless for the benefit of a child or descendant who has been judicially incapacitated.

There also are regional specifics as for testamentary trust[3].

In addition of the main inheritance rights so far indicated, there are others according to the Spanish Civil Code or which stemming from regional legislation

2. What would the role of your Land Register or registrars be in order to put in practice the principle of adaptation? What contributions could the Land Register make?

According to Spanish legal system, the number of real rights is not legally determined so that the numerus apertusprinciple allows recognizing rights in rem not legally established. The recognition of a real right is considered as a public order matter. Consequently not every right complies with the features required to be known as a real right.

On the other hand, the Spanish land registrar is the public authority for registration of ownership and other real rights over immovable property. The land registrar, as legal expert, asses the legality of the documents presented in the registry and takes a decision over the registration or not of the real rights.

So, we think that the Spanish land registrar could be a suitable authority in order to commit with the principle of adaptation in the field of real rights over real estates. The land registrars can make the adaptation of the unknown real rights as they are legal experts in matters such as land law and property law. The land registrar submits to a strict legal scrutiny the documents presented in the Land registry in order to check the capacity of the parties for the disposal, the formalities required and the legality of the acts in order to register the rights.

In addition, cooperation through legal networks such as ELRN or EJN, which put in touch legal experts and authorities in different countries, will help the registrar. Adaptation made by the registrar, as legal authority supported by the law of the state rei sitaeprovides a direct via for adaptation, without time loosing and additional cost efforts.

• Imagine you receive a request for the registration of a foreign European Certificate of Succession. It follows from this Certificate that one of the heirs is entitled to a right that is not part of your national numerus clausus. How do you approach this problem?
  In Spanish law, there is a discussion about whether we have a numerus clausus system or a numerus apertus one of rights in rem that may be registered. The theory of numerus apertus is admitted, as long as the particular right in rem complies the requirements of all rights in rem (effects erga omens and power of disposal over the objet of the right) and the requirements of “speciality” or “determination” principle (that relates with proper definition of the right and the object, extent and effects of the right). In consequence, the Spanish registrars may be the national autorithy able to adapt the foreign right in rem to the closest national equivalent, in the sense established by Article 31 Regulation (EU) No 650/2012, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it, or to request further definition of the right to fulfill Spanish law requirements. Furthermore, the adaptation by the registrar is also regulated by Spanish National Law -in the framework of other matters, but that can serve, and in fact do serve, as a guideline in related ones, as this is the case-, in Article 61 of the International Juridical Cooperation in civil matters Act 29/2015, of July 30th 2015: “1. When the resolution or the foreign public document prescribes measures or entitles rights that are unknown under Spanish law, the registrar will proceed to its adaptation, as long as possible, to a measure or right provided or known under Spanish national law that have equivalent effects and chase equivalent purposes and interests, although that particular adaptation will only have the effects provided by the national law of the State of origin. Before the registration, the registrar will let the owner of the right or the person interested in the measure know the adaptation expected to be done. 2. Any interested person will be legitimated to contest the adaptation directly before the courts”.
  

[1] In Aragon only the descendants have the right to a reserved portion, a half of the state. In Catalonia the descendants have the right to a fourth of the value of the estate; if there is no offspring, the surviving parents have such right. In Baleares, and more specifically in Mallorca, the children and their offspring, the parents and the surviving spouse. In Ibiza and Formentera, the surviving spouse does not have such right. In Navarra only the children have the right to a reserved portion, and in their absence, their descendants. Similarly to Civil Code, in País Vasco there are certain heirs who have the right to a reserved portion: the descendants (children, and in their absence, their children’s offspring), the ascendants (father and mother, and in case of death their ascendants) and the surviving spouse. In Galicia, the reserved share of the descendants consists in one fourth of the estate. There is no reserved portion for parents or ascendants even in the case that no descendants exist. In Galicia and Catalonia the reserved shares just entitle the beneficiaries to a compulsory debt claim, but are not necessarily paid by goods from the estate. This implies that partition can be done without the beneficiaries consent.

[2] In Aragon, the surviving spouse has the right of use –usufruct- of all the assets belonging to the deceased. In Mallorca, the surviving spouse has the right to a reserved portion, half of the assets if there is offspring and two-thirds in the remaining cases. In Catalonia, the surviving spouse/partner has the right of use to the whole estate if there are children, but has the possibility to commute such right for a fourth of the value of the estate as well as the right of use of the habitual residence. There is a period of one year to opt for it. If the surviving spouse/partner has not enough for a living, after the liquidation of the marital regime and the distribution of the estate, they have the right to ask for what is necessary for them up to a fourth of the value of the liquidated estate: it is the cuarta vidual. In Navarra, the surviving spouse/partner has the right to the fidelity usufruct, which includes the right of use to all the assets belonging to the deceased. In País Vasco, the right of the surviving spouse is the right of use of half of the estate if there are ascendants or descendants, and two-thirds in the remaining cases. In Galicia, the surviving spouse has de right of the usufruct of one fourth of the estate.

[3] In Catalonia: the deceased –trustor- orders the trustee/s to keep the assets for the future acquirer. The trustor –deceased- can name as many trustees as he/she wishes, as long as they are alive at the time of death, if not, only one unborn person can be named. The fiduciary –trustee- must register the succession in the Land Registry including the trust clause literally. In Mallorca’s legislation, there is no limit to how many persons can be trustees in familiar testamentary trust, as long as they do not go further than the second generation; if it is a non familiar trust, no limits as long as the trustees are alive at the time of the trustor’s passing. No limitation to the number of trustees if they are alive or at least conceived by the time the first trustee acquires the assets. If they do not fulfill such requirements, the fourth calling is the limit. In Aragon we find kinds of fiducia.