Tacit acceptance of the inheritance

"Payment of the debts of the estate with one's own money, and not with money of the estate, does not entail acceptance of the inheritance."

That is the principle stated by the Court of Cassation in judgment of 22 February 2018, no. 4320. The Supreme Court clarified that payment of one or more debts left by the deceased may entail tacit acceptance of the inheritance only when it is made with assets or money taken from the estate. Where, by contrast, payment is made with one's own money, it does not in itself represent an act symptomatic of the heir's or heirs' intention to accept the inheritance. The rule (Article 1180 of the Civil Code) which entitles any third party to perform another's debt excludes precisely that payment (in this case, of the deceased's debt) constitutes a typical act of the heir identifiable as acceptance of the inheritance. More specifically, the case before the Court of Cassation was as follows: a surviving spouse had money standing in an account held jointly with the deceased spouse. The survivor had made withdrawals from the current account held jointly with the deceased in order to pay the instalments of the joint land loan, including beyond the survivor's 50% share. Hence the claim by the deceased's creditors that tacit acceptance of the deceased spouse's inheritance should be declared, so that their rights could be protected in immovable enforcement proceedings. The Supreme Court, without entering into the merits of the second-instance judge's "evidential" assessments, stated the principle set out above. It considered the Court of Appeal's reasoning on the nature of the various withdrawals made by the surviving spouse to be sound, those withdrawals being regarded, precisely, as the effect not already (or rather not necessarily) of the interested person's quality as heir, but of the quality of mere joint account-holder, holding several powers as against the bank, wholly detached from the context of the opening of the succession.

In our view this is a decision of considerable interest and of substantial protection for the "survivor", where the deceased has debt exposure that was not foreseen or foreseeable.