Conservación de la explotación familiar indivisa en el ámbito de la sucesión testamentariaEstudio del artículo 1056.2 del código civil español

Resumen

The second paragraph of Section 1056 of the Civil Code provides that "the testator that in reference to the conservation of the company or in the interest of his family wants to preserve undivided an enterprise or maintain control of a corporation or group owned by them, may use the right granted in this article, stipulating his legitimate to be paid cash to the rest of heirs. To this end, it is not necessary to have enough cash in the inheritance for this payment, being it possible both to afford it with other cash not included in the inheritance and stipulate postponement of the payment, either by the testator or by a counter-divider designated by him, provided this postponement does not exceed five years from the death of the testator; it may also apply any other means of extinguishing obligations. Hadn’t any method of payment been set, any of the heirs will be entitled to demand their legitimate to be paid with assets from the inheritance. Neither the provisions set in Section 843, nor the first paragraph of Article 844 will apply in such distribution of an inheritance”. The question arising is whether the grandfather may award the enterprise to one of his grandchildren even when his own son or daughter may still be alive, that is the father or mother of that grandchild, and whether that the testator may assign several legatees, as it may happen that several people are running the company. Awarding the company to several legatees makes a cash compensation more affordable, which may provide to the intention of keeping the company within the family. In most cases the corporation legatee will be a benefitted rightful heir, encumbered with having to pay the cash legitimates or the greater shares of the rest of heirs. It has been discussed by doctrine if the testator who does not respect the layout, arranging a partition in which the shares do not match the portions assigned in the title of heir or legatee, performs a null partition. Section 1075 of the Civil Code makes clear that the partition made by the testator is impervious to value differences, whether foreseen or suddenly occurred, since, in addition, as Section 1056 says, when the testator makes the partition "it will be accepted". The fact that the distribution of the assets of the testator is carried out by an act "inter vivos" does not give it a contractual nature, nor gives it binding force against “de cuius”. Any type of partition is a complement or corollary of a transmission "mortis causa". It can only have distributive-translational effects as a result of death of the decedent.