Circumstances of the dish
In 2007, the defendant received a certificate of inheritance for the apartment. At that time, her mother renounced the obligatory share in her husband’s inheritance, which was notarized. The courts of the first instance considered that she had not exercised her right to receive a certificate for 1/2 of the share in the joint property of the spouses as one of the spouses who survived the other.
After the death of her mother, the defendant did not apply to a notary for registration of the inheritance under a will made in her name. Instead, her brother used it for inheritance after the mother’s death. After receiving a refusal because the apartment was registered to the defendant, he appealed to the court, challenging the certificate of the right to inherit the will in his name for the entire disputed apartment after his father’s death.
What does the Court say?
In case of non-acceptance of the inheritance or refusal to accept it by the testamentary heirs, the right to inherit by law is granted to the persons specified in Articles 1261-1265 of the Civil Code.
After the death of one of the spouses, the inheritance is opened only on the property that belonged to the testator personally. Accordingly, THE SHARE OF ANOTHER SPOUSE IN A PROJECT WHICH IS A JOINTLY COMPATIBLE PROPERTY IS NOT PART OF THE INHERITANCE. Thus, the spouse who is alive, exercising his rights as an heir, has the right to apply for acceptance of the inheritance (or refusal to accept it), as well as an application for a certificate of entitlement to a share in the joint property of the spouses.
According to the application, the mother refused to receive a certificate of the right to inherit according to the law for the obligatory share provided for her by Article 1241 of the Civil Code. However, she did NOT relinquish her ownership right to 1/2 of the disputed apartment, which belongs to her on the right of joint ownership of the spouses.
Although she did not apply to the notary for a certificate of ownership of a share in the joint property, this does not indicate that she recognized the property’s ownership to the testator. After all, APPEALING TO A NOTARY WITH A CORRESPONDING STATEMENT IS A RIGHT, NOT AN OBLIGATION. And its non-submission does not deprive the other spouse of his ownership of the share in the joint property of the spouses.
Thus, the plaintiff’s mother owned 1/2 of the disputed property as a share in the joint property of the spouses, and with the death of her husband, her ownership of this part of the property did not cease.
