The National Civil Chamber ruled in the case "Noailles, Juan s / Succession", as provided by Article 3573 bis of Civil Code, incorporated by Act 20,798, if the death of the deceased who no longer an single property be habitable as a member of the hereditary and that would have constituted the matrimonial home and concur with others to inherit or legatees, the surviving spouse is entitled Room for life and free.
The dominant philosophy of the said Act was to prevent the surviving spouse is no room Upon the death of her consort by its competition with other heirs with whom to share the property, which in most cases require the sale of it to perceive its legitimate or aliquot, or to pay the costs, leaving the surviving spouse without room.
is being compared to a dismemberment of ownership, a situation that leads to bring up the principle of uniqueness of the burden for this property right and the subsequent assumption that it is free to them if of doubt, which is to be of exceptional quality is recognized the right of the surviving spouse. But the special feature that means the merits of the request must be evaluated strictly, because otherwise there would blend in with the standard of care that inspired the enactment of this rule and leads to render illusory the right conferred by it.
A reasonable guideline for weighing the admissibility of the regulatory provisions provide the room, that it be limited to the personal needs of habit and his family, as his social status. Such needs will be judged in relation to the various circumstances that may increase or decrease, as their habits, health status and where you live, without being able to counter that is not a person in need.
harmonic The game follows the guidelines indicated that the shelter care should not postpone the right of the heirs or trample the prerogatives and aspirations unwise or arbitrary, because of their over-the legitimate expectations of those.
If the surviving spouse, before requesting the right of residence under Article 3573 bis of Civil Code, together with the heirs requested the appointment of appraiser for the judicial partition of real estate without the acquis mention that right after his invocation puts it in conflict with their own actions. This doctrine for their own actions keeps correspondence with the assumption of good faith as the law imposes a duty to proceed with honesty and integrity in the development of legal relations.
The constitution of the actual room right under Article 3573 bis of Civil Code requires a positive externalization of the will and the configuration of the ends that make it appropriate. That should be attempted prior to the consent of the prerogative of the heirs of the deceased to require delivery their inherited portions (Civ. Nat CAM.ES, Room I, 11/13/1997, 03/11/1998 LL)
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