MONTENEGRO's REPORT - Family and succession law
Family and succession law
National rapporteur Tanja Cepic
It is necessary for a court to come to know about death of testator in order to initiate probate proceeding in the legal system of Montenegro. One of the principles of probate proceeding is the principle of officiality. The principle of officiality in probate proceeding means that the participants have no possibility to influence arbitrarily initiation of proceeding, course, termination and subject matter of proceeding. Therefore initiation as well as the course of a probate proceeding depend only on the court that ex officio initiate the proceeding as soon as they come to know about the death of testator, which is legislative regulated in the Article 97 of non-contentious procedure act. There are some exceptions regarding the principle of officiality. If there is no real estate after a testator, probate proceeding is not initialized ex officio but it is to empowered person to do it. Court of Probate exclusively can issue a certificate of inheritance. Court of probate is the court that has material and territorial jurisdiction over probate trial. In Montenegro Trial Court has material jurisdiction over probate trial (Article 16, clause 4 Court Law). Trial Court has territorial jurisdiction in case the testator at the time of death had permanent or temporary residence on its territory. If the testator had neither permanent nor temporary residence at the time of death then Trial Court where most of his real estate is has territorial jurisdiction (Article 95, Clause 1 and 2 Non-Litigious Civil Procedure Act). As for notary public, it is possible to give inheritance statement there, draw up a notorial testament, life – care contract and contract of assignment and distribution of property during one's life but notaries have not been authorized to conduct a probate proceeding neither to issue a certificate of inheritance.
Article 6 of Law on Inheritance says:' It is possible to inherit under the law (legal heirs) on the basis of the will'. This Article expressly stipulates what the basis for pleading the inheritance is in Montenegro. Basis for pleading the inheritance is a set of legal facts upon which in each case it is determined which individuals will become heirs of the testator and how much will be their inherited quota. Heirs and the amount of inherited quotas may be assigned by the testator by legal act mortis causa, in which case it is talked about voluntary inheritance.
Besides voluntary there is a legal succession. In legal succession criteria for determining the successors and amount of inherited quota is determined by the legislator according to legally relevant relationship between the decedent and potential heirs. In foreign legal systems voluntary succession is possible on the basis of three legal acts: a will, a contract of succession and a common will. Agreement on succession and a common will fall into the category of absolutely void transactions. Nullity of the contract of inheritance is explicitly stipulated in Article 121 Law on Inheritance. Nullity of mutual wills derives from its hybrid nature, since the death of one of the testators the legal effects of common will are identical to the legal effect of the agreement on inheritance. Therefore, the Montenegrin law limited the possibility of voluntary inheritance only to a legal deal and it is a testament. In Montenegro, the successor can inherit one part of the inheritance as legal heir and the other one as a testamentary heir. In this way it deviates from the rule of Roman law, according to which no one can inherit a part on the basis of a will and a part by the law. Testamentary succession takes precedence over the statutory (Art. 7, Art. 28 and Art. 137 Inheritance Law).
Succession rights of spouses come from the existence of their marriage with the decedent at the time of the decedent's death. Spouse will not become legal heir if the marriage was divorced or annulled in the lifetime of the testator. Spouse's inheritance position as a rule is not conditioned by validity of marriage (Art. 25 Law on Inheritance). In first order of succession Testator's estate is divided into equal parts between the testator's spouse and children (Article 11 Inheritance Law). Legislator treats spouse as a so-called "legal decedent's daughter" (filia loco), so they are a single line in first order of succession. Members of second order of succession can plead inheritance in case when the traitor did not leave any descendants who could or want to inherit (Art. 13. Inheritance Law 1). Spouse can not be the sole heir in first order of succession. Spouse is treated as a successor of first order only when there is at least one descendant who can and wants to inherit. Therefore 1/2 is the highest inheritance quota that a spouse can inherit in first order of succession. In second order of succession deceased estate is divided into equal portions between the spouses and testator's relatives. Spouse in that case inherits 1/2, and the other half which is intended to testator's relatives is divided into equal portions by decedent's parents so that each of them will be awarded 1/4 inheritance. When in second order of succession there is no relative who could and wants to inherit the decedent, the entire legacy belongs to the spouse (Article 16 Inheritance Law). If the spouse cannot or will not succeed, the right of succession per stripe is not applied. A spouse cannot have the capacity of succession per stripe (presentation), because it could lead to the situation that decedent's stepchildren plead the inheritance, and they do not enter the circle of legal heirs.
Accepting extramarital family as the reality of modern society Montenegrin legislature wanted to give it additional legitimacy by providing that testator's common-law spouse, under certain conditions, becomes one of the legal heirs and have the same status as a spouse. Common-law partner, to become a legal successor, three conditions must be cumulatively fulfilled: 1) that informal marriage is legitimate, 2) that it lasted for a longer time, and 3) that it existed at the time of the decedent's death (Article 9, clause 2 and Inheritance Law 3). Common-law marriage is legitimate if it is consistent with current social morality, or in other words if it is between persons who can legally enter into a valid marriage. Common-law partner will not become the legal heir of the decedent if between them there is an obstacle that hinders the conclusion of a valid marriage. Mutual legal succession between common-law partners is only possible if the common- law marriage lasted longer. This condition should prevent a person who was in a temporary romantic relationship with the testator identify themselves as a common-law partner and align themselves in a circle of legal heirs. Since the legacy passed on to successors at the point of death, non-marital relationship can be the basis of pleading to the legacy only if the common law relationship existed at the time. If the common-law marriage broke before the decedent's death, common law partner cannot become legal heir. In calculating the legal successor portion of the common-law partner the same rules that apply to spouses are applied (Article 9, clause 2 Inheritance Law).
Montenegrin Hereditary system does not recognize the institute of protection of family property in the event of a second marriage of surviving spouse. Survived spouse inherits as much as it belongs to them in a particular case and is completely free to get married after the death of their spouse. Our law also does not recognize the so-called "time of mourning" or tempus lugendi that existed in older legal systems. "Time of mourning" is considered to be discriminatory provision because it prevents a spouse to enter into a new marriage nine months after the death of their partner. Montenegrin legislation also sets no limits on the number of successive marriages that one person can enter into.
In the Montenegrin legal system there is no institute of compulsory inheritance. The inheritance is viewed solely as a right and not as an obligation. Every person is free to decide whether they want to inherit, otherwise they will not be called to the legacy as a legal or testamentary heir. A partial exception to this rule is the state, which appears as the last legal heir. The state pleads inheritance if the traitor left behind no person among the legal heirs or testamentary heirs who could or wanted to succeed. In that case, the court shall issue an order to consign the inheritance to the local community. The state, as any other legal heir, will be responsible for the decedent's debts and be required to fulfill the decedent's legacies. The state is said to be "forced lawful heir" because you cannot give up the inheritance when pleading the inheritance as the last legal heir. The state also cannot be unworthy to inherit, nor can it become a holder of hereditary rights that are reserved only for physical persons and private legal entities. If there are such rights in the legacy, they are extinguished. Since the state as a forced heir may not lose heritage, if it does not comply with some testator's order it will not be treated like resolutory condition.
The right to housing for the benefit of the surviving spouse or partner in Montenegrin law of inheritance exists and is achieved by increasing the hereditary portion of the spouse. The increase in hereditary portion spouse can attain in first or second order of succession, when is without necessary livelihood (Article 24 of Inheritance Law). This principle, which is a specific instrument of probate law, is aimed to prevent jeopardizing the basic existence of testator's spouse, occurring on the one hand when the spouse is losing maintenance because of the death of the decedent, on the other hand must share property with other heirs. Hereditary portion of the spouse may be increased in two ways: 1) a small increase in hereditary portion and 2) large increase in hereditary portion. A small increase in the hereditary portion is when the court decides, in favor of the spouse, to constitute usufruct on the whole or a part of the legacy inherited by his successors. In order to come to an increase in hereditary portion of the spouse it is necessary to meet three conditions: 1) that the spouse after the decedent's death is without necessary means of livelihood, 2) the spouse must submit a claim for increase of the legal successor portion, and 3) to increase the hereditary portion of spouses comes at the discretion of the court. The court will decide to increase the spouse's inherited portion if it considers it expedient.
Large increase in hereditary portion exists when the court decides that the spouse will inherit the entire estate. The court will award the entire legacy to a spouse if in addition to the conditions required for a small increase, two additional conditions are fulfilled: 1) The spouse must submit a request to be granted the entire legacy and 2) the legacy must be so little value that its division would bring the spouse to scarcity.
If there were a possible reduction of testamentary disposition or return of gifts due portion of one or more successor would be breached. The legislator defines due portion as a portion of the legacy that a testator cannot dispose of. Only persons who the legislator explicitly predicted have right to statutory portion. Forced heirs in Montenegro are: descendants, adopted children and their descendants, spouse, parents, foster parents, brothers, sisters, and grandmothers and grandfathers (Article 27 Inheritance Law). Forced heir is guaranteed a certain value of the decedent's property after the death of the decedent. The legal consequences of infringement of due portion are different depending on whether the due portion is inheritance right or obligatory right. If due portion is hereditary right, what is the rule of Montenegro, its infringement results in reduction of testamentary disposition and return of gifts. All the decedent's testamentary disposition is reduced proportionally, while it is irrelevant if it is covered by one or more wills. All the dispositions that are done in many testaments are treated as a single disposition. Legacy is also considered a testamentary disposition which is reduced in order to get the right due portion. Testator has right on limited impact on the order in which the forced heirs are settled. Article 37 of the Inheritance Law, which stipulates that testamentary dispositions are decreases first, and gifts will be given back only if due portion would not be settled by reducing of testamentary disposition, has an imperative character and a testator cannot exclude its application. The last gift will be returned first and the others in order that is reversed of the order in which the gifts were made (Article 40, paragraph 1 of Inheritance Law). Gifts made at the same time will be returned proportionally. Protection of due portion is realised in probate or civil proceeding, by filing a lawsuit to reduce the testamentary disposition and to return gifts (actio supletioria). The claim for reduction of testamentary disposition shall be filed within three years from the day of the grant of probate. Lawsuit for return of gifts is filed within three years of the decedent's death.
In the system of Inheritance rights on due portion, donee does not pay to the forced heir equivalent value of due portion, but returns a gift in natura. Numerous problems can occur here: alienation or destruction of the donated items, responsibility for reducing the value of donated items, donee entitled to reimbursement of expenses related to the item(s). In the case of the donee's death, return of gifts may be required from his successors. Position of donee that has alienated a gift depends on whether there was alienation due to profitable or benefaction act. If the gift is alienated because of profitable act then real subrogation rules are applied - donee will be required to give the whole value earned to the forced heir. The same rule applies when the thing has been destroyed and the donee has received compensation for destroying thing(s). Position of the donee who alienates donated thing for free or destroys it depends on his conscience. Negligent donee will be required to pay the requisite heir appropriate refund compensation. Negligent donee is the one who at the time of alienation or destruction of thing(s) could expect that return of the gift is possible. Donee is presumed to be conscientious all the time until they are requested to return the gift. Forced heir may prove that the donee was negligent even earlier.
Legislator presumes that legacy can be inherited by legal entity. Since it is possible to narrow legal capacity of legal entity there is a possibility that the special regulations restrict their ability to inherit (Article 125, paragraph 3 Inheritance Law). Legal entities regularly appear as testamentary heirs. The only case when legal entity inherits under the law is if legacy belongs to the state as the last heir. The legislator shall not regulate which conditions a legal entity must meet in order to become a successor. This legal gap is covered by analogous application of the rules relating to individuals. Thus legal entity can be testator's heir only if the legal entity existed (if it was legally able) at the time of his death. There are two exceptions. A decedent may order in his will establishment of a foundation, and intended their inheritance for achieving its objectives (Article 82, para. 2 Inheritance Law). Such foundation will be testator's heir although it did not exist at the time of his death. Another exception is if in the life time of decedent the process of establishing a legal entity began, it may be the heir on condition that after the decedent's death comes to the establishment of the legal entity (analogous to the use of fiction about Nasciturus).
In the Montenegrin law protection of persons under disability and their interests are prescribed by the Family Law. Guardianship is a direct protection that the state provides to children without parental care, persons deprived of their legal capacity and other persons in a situation where it is necessary to protect their rights and interests (Article 9, paragraph 1 and Art. 244 FL). We have three subjects in custody: guardianship authority, ward and guardian. Guardianship authority is a specialized public body entrusted with the performance of duties of foster care. Under current regulations to carry out the guardianship center for social work is competent (Article 9, para. 2 FL). The guardian is a person appointed by the guardianship authority that, under its supervision, cares for personality, rights, interests and property of their ward. Capacity of being a guardian usually has a physical person. So among other things, a guardian is also responsible for managing the ward's property. Managing means making decisions about how to use, maintain, keep, enlarge and improve ward's property. When a person deprived of legal capacity is a heir, his/her guardian will give Hereditary statement instead of him/her, taking into account the best interests of their wards, and with the prior approval of guardianship authority.
Since probate proceedings is initiated and conducted ex officio, the heirs cannot influence the initiation and course, neither can they waive on it. Waiving of "hereditary expectancy' or in other words of inheritance before the presumed decedent died is absolutely void transaction. Assigning "hereditary expectancy" to third person is also absolutely void transaction. Section 122 of Inheritance Law says: the contract is void if it alienates anyone expected legacy as well as each contract of inheritance of a third party still alive.
In the Montenegrin law mortis causa jobs, whether it is a gift or inheritance in the event of death (donatio mortis causa) are subject to taxation and the only exception to the rule occurs when the decedent's heirs inherit from the first order of succession, or when the gift was made to the heir from the first order of succession .
When it comes to private international law in Montenegro the Conflict of Laws (CL) is in force, which was adopted in 1982, and slightly modified 1996. This law still applies in all the republics of the former Yugoslavia. Article 30 of the CL relates to inheritance and says: law of the country whose citizen was testator at the time of death is valid. For the ability to make a will the law of the State whose nationality the testator had at the time of preparation of the will. Article 31 refers to the validity of a will and the revocation of the will. Will is valid as regards its form if it is valid under one of the following rights:
1) by the right of the place where the will is made;
2) by the law of the State of which the testator was a citizen at the time of disposition of testament or at the time of death;
3) by the right of permanent residence of testator at the time of disposition of testament or at the time of death;
4) by the right of temporary residence of testator at the time of disposition of testament or at the time of death
5) by the law of Montenegro;
6) for the property - and by the law of the place where the property is located.
Revocation of a testament will be valid as regards its form if the form is valid under any law under which, in accordance with the provisions of paragraph 1 of this article, a testament could be validly made.
Skipping generations can occur only when the right per stripe (presentation) is applied. Application of the right per stripe(presentation) may happen only if a person cannot have the capacity of succession per stripe, i.e. if the decedent was not alive at the moment of testator's death, when the decedent is unworthy to inherit, if is excluded from the right to the due portion, or is deprived of the due portion. This shows that the application of the right per presentation is a classic example of skipping generations. Application of the law per stripe in narrow sense makes it possible that in the end there is such distribution of deceased estate which would be natural course of things, and the normal course is that children outlive their parents.
In case of legal incapacity of a person a guardian is appointed to him with the participation of specialized bodies entrusted with the performance of duties of guardianship. The guardian is a person appointed by the guardianship authority that, under its supervision, cares for personality, rights, interests and property of their ward.
After the last reform of family law in Montenegro, it is possible to enter into a marriage contract before and during the marriage. The marriage contract is an agreement that regulates property relations of the spouses (during the marriage), or future spouses (before marriage) at the current or future property (Article 301 -303 FL). The law recognizes only the term 'marriage contract' and not 'prenuptial agreement'. Marriage contract has two forms determined by the time of its conclusion (future spouses conclude it before marriage, but its legal effect is delayed until marriage, or spouses enter into it during the marriage).
In Montenegro, marriage between persons of the same sex is not possible as the Montenegrin Constitution and Family Code defines marriage as a partnership between a man and a woman, and therefore the conclusion of the marriage contract between two persons of the same sex is absolutely void transaction.