The spousal consent as a limitation to the exercise of the right to waive inheritance

Abstract

There is a doctrinal divergence about the need for a spousal consent for the renunciation of the inheritance by those who are married, with the exception of those who were married under the regime of absolute separation. It will be argued in this article that the spousal consent is not required of the married heir. This article is divided into four parts. The first will deal with marriage and its effects, which may be personal or patrimonial. One of the patrimonial effects is the property regime, in which the spousal consent is inserted. The second part concerns the consequence of the absence of spousal consent. It will be demonstrated that it is a matter of relative invalidity or voidability. The third part is intended to expose the reasons why it is believed that the waiver of the inheritance is not to be confused with the asset disposal of art. 1647, item I, of the Civil Code. The difference between legal and de facto acquisition deserves to be highlighted. The fourth and last part concerns the demonstration that the acceptance or not of the inheritance is not merely an economic-financial issue.