La protección de las personas con discapacidad en derecho sucesorio

Abstract

In this work we study some mechanisms of direct protection of persons with disabilities in the field of succession Law. It focuses the study of several legal figures that have been affected by the reforms introduced by Law 41/2003, of November 18th, on the patrimonial protection of people with disabilities and modification of the Civil Code, the Civil Procedure Law and tax regulations for this purpose, -which, at the same time, has been modified by Law 8/2021, of June 2, which reforms civil and procedural legislation for the support of people with disabilities in the exercise of their legal capacity-, trying to improve the patrimonial protection of these people, increasing the legal possibilities of affecting economic means to the satisfaction of their needs or trying, in general, improve the legal treatment of persons with disabilities. Thus, after the introductory chapter, is studied the reform introduced in article 822 of the Civil Code by the aforementioned Law 41/2003; until then, there was no civil regulation that directly favored the obtaining by a person with a disability of the use of a dwelling. After Law 8/2021, the aforementioned article 822 regulates the attribution of a right of habitation to a legitimate person who is "in a situation of disability". Subsequently, we will address the reforms introduced in articles 782, 808 and 813.2 of the Civil Code. Originally, Law 41/2003 redrafted the first and last of the aforementioned articles and added a new third paragraph to article 808, all so that the third of strict legitimate could be taxed with a trustee substitution in which the judicially incapacitated children or descendants were trustees (who, at the same time, could be a person with disabilities) and trustees the forced co-heirs. Law 8/2021 redrafts article 782; when incapacitation disappears, the aforementioned article no longer refers to judicially incapacitated children or descendants, but to "children of the testator who are in a situation of disability". With regard to article 808, delete the third paragraph, move the fourth paragraph to third place and then add two new paragraphs. The new article 808 no longer refers to judicially incapacitated children or descendants, but to legitimaries who are in a situation of disability, in which case "the testator may dispose in his favor of the strict legitimate of the other legitimaries without disability". Finally, Law 8/2021 redrafts the second paragraph of article 813 – referring to the reserved share and the testator – in the following terms: "Neither may impose on it tax, condition, or substitution of any kind, except as provided regarding the usufruct of the widower and the provisions of articles 782 and 808 ". Next, we study the reform introduced in article 756 of the Civil Code, referring to indignity. Law 41/2003 added a seventh paragraph in which it was declared incapable of succeeding because of indignity, "in the case of the succession of a person with disabilities, persons entitled to inheritance who have not provided due care, understood as those regulated in articles 142 and 146 of the Civil Code". Besides, Law 8/2021 redrafts the third paragraph of paragraph 2 and paragraph 7 of the aforementioned article 756; based on the new wording, the following are incapable of succeeding because of indignity: "Also the deprived by a final resolution of parental authority, or removed from the exercise of guardianship or foster care of a minor or the exercise of the guardianship of a person with disability for reasons that are attributable to him, with respect to the inheritance of the same." "7º In the event of the succession of a person with a disability, persons entitled to inheritance who have not provided due care, understood as those regulated in articles 142 and 146 of the Civil Code." The last modification introduced in the field of Inheritance Law by Law 41/2003, of lesser scope than the previous ones, but undoubtedly of singular practical relevance, was that relating to the dispensation of collation incorporated into article 1041 C.C., to which a second paragraph is added, based on which "the expenses made by parents and ascendants to cover the special needs of their children or descendants will not be subject to collation. with disabilities". Law 8/2021 drafts the new article 1041 with the following wording: "The expenses of food, education, cure of diseases, even if they are extraordinary, learning, or customary gifts will not be subject to collation. Nor shall expenses incurred by parents and ascendants to cover the special needs of their children or descendants required by their situation of disability be subject to collation." Finally, to finish the work, are exposed the conclusions obtained from the study of the previous sections.