Inheritance rights and the best interest of the child: the underage heir’s permanency in the property subject to division Comment on the judgment rendered by the Civil and Commercial Court (1 Inst., 11 Nom.) of Córdoba in “N.J.C-Declaratoria de Herederos”

Comment on the judgment rendered by the Civil and Commercial Court (1 Inst., 11 Nom.) of Córdoba in “N.J.C-Declaratoria de Herederos”

Abstract

The Argentinian Civil Code states that the surviving spouse has the right to remain in the house where he/she was living at the time of the testator’s death, thereby avoiding the division of the property. The cohabiting partner has a similar, but more limited, right. However, this possibility is not expressly accepted when the person seeking to remain in the property is the deceased’s underage heir. This lack of recognition generates a tension between the civil law rules concerning hereditary division and the special protection that must be assigned to children, especially after the approval of the Convention on the Rights of the Child. The purpose of this paper is to analyze a judgement where this tension was solved by extending to the child the right recognized to the surviving spouse. The aim is the evaluate the arguments offered by the judge, as well as to present some additional ones in favor of the decision.