The inheritance is an autonomous estate, whose holders are the heirs’ successors of the author of the inheritance, and which is then represented by all of them or only by the head of family, depending on the exercise of the right in question.
The relatives that may inherit from any person are listed in article 2133 of the Civil Code: a) spouse; b) descendants; c) ascendants; d) siblings and their descendants (nephews and nieces); e) other collateral relatives up to the fourth degree. This provision defines the order in which the various heirs are summoned, and the order in which they are summoned to share in the inheritance of a given person only arises after that person’s death, since the succession is only opened at the time of the author’s death.
According to article 2139, no. 2 of the Civil Code, if the author of the succession left no surviving spouse, the inheritance is divided among the children in equal shares. In the absence of donations or wills, two-thirds will be attributed to each child by legitimate succession and one-third by succession.
The rules are different if the spouse and the descendants are heirs – in this case, the division between the spouse and the children happens individually, dividing the inheritance in equal parts according to the number of heirs, but the spouse’s share cannot be less than one-fourth of the inheritance (no. 1 of said article).
But the descendants who wish to participate in the ascendant’s succession must return to the inheritance, for equal sharing, the goods or values donated by the ascendant: this return is called collation.
The purpose of collation is to establish the equality of the descendants in the deceased person’s partition, by means of the fictitious restitution to the inheritance of the assets donated to one of them by the deceased person during their lifetime. The collation is the restitution by the descendants, as a rule according to the value, of the goods or values that the ascendants donated to them and is a condition for their participation in the succession, whose intent is the equal sharing between the descendant of the donee and the other descendants.
Collation is a supplementary instrument: the author of the succession can waive collation. In this case, it is concluded that the author of the succession wanted to advantage the descendant and the imputation is not made on their legitimate subjective but, on the contrary, on the available share and only if this is exceeded will it be made on the unavailable share.
The collation is based on the presumption that the author of the succession, by attributing during their lifetime some donation to a legitimate heir, did not wish to benefit them in comparison with the others, but only to anticipate the transfer of the legitimate share that would belong to them in the future. This presumption can be ruled out by the donor at the time of the donation or subsequently. Waiving the donation or donating according to the available share are equivalent assertions. In such cases, all that is required is to consider the reduction as being unprofitable.
03/03/2022