Dispositions of jointly inherited property: relative ineffectiveness as against the heirs

Under Article 76 of the Inheritance Act, a co-heir’s disposition of an individual asset of the estate is ineffective if that asset is not allotted to that heir on partition.

As explained in Interpretative Decision No. 1/2004 in civil case No. 1/2004 of the General Assembly of the Civil Colleges of the Supreme Court of Cassation, Article 76 renders all dispositions of jointly inherited property or an inherited undivided share in property relatively ineffective as against the heirs. The exceptions are dispositions that exhaust the inheritance and thus constitute a sale of an inheritance within Article 212 of the Obligations and Contracts Act, dispositions by all the heirs of their respective shares, and dispositions between the heirs themselves. For the purposes of Article 76 it does not matter whether the disposition was for consideration or gratuitous (Interpretative Decision No. 72/1986 of the General Assembly of the Civil Colleges of the Supreme Court).

In Interpretative Decision No. 1/2004 the General Assembly explained that Article 76 safeguards the co-heirs’ interests in partition of the estate. Its place in a statute governing succession points to a specific purpose and limited scope. First, it applies only to assets whose co-ownership arose through inheritance. Second, where an undivided share in inherited property has been disposed of, only co-heirs who have not disposed of their own shares have standing to rely on the relative ineffectiveness in partition proceedings (point 1 of Interpretative Decision No. 1 of 19 May 2004 in interpretative case No. 1/2004). They may do so if they consider that other co-heirs’ dispositions of undivided shares prejudice their interests in the partition. Thus, not every disposition of an individual estate asset is ineffective. It is the co-heir who retained their share who may invoke ineffectiveness if, in their view, the disposition infringes their particular right to have the estate divided solely among co-heirs. The provision is not intended to impose a general restriction on transfers by a co-heir to third parties, or to deny the purchaser of an undivided share in inherited property the right to seek judicial partition.

Article 76 applies where a co-heir transfers ownership to a third party outside the co-ownership, not where the transferee is another co-heir. See Supreme Court of Cassation Decision No. 436 of 6 March 2012 in civil case No. 1315/2010, First Civil Division; Decision No. 228 of 20 October 2011 in civil case No. 45/2011, Second Civil Division; and Decision No. 436 of 6 March 2012 in civil case No. 1315/2010, First Civil Division.

This article is not a legal opinion or legal advice concerning a particular situation or person. For assistance with a family or inheritance matter, consult a lawyer practising in that field.