Rei vindicatio of forced share in inheritance (on the essence of the action under art. 37 of Bulgarian law on inheritance)

Abstract

The heir with a reserved (forced) share is entitled to receive his share preferably in kind rather than in money. Therefore, when his claim for reduction or cancellation of a donation or testament of immovable property, is granted, the aim of the law is for the plaintiff to become the owner of this property or part of it. However, if, at the time of the judgment, the property has already been transferred to a third party or a limited right in rem has been established over it, the law does not stipulate that these rights in rem of the third parties are automatically extinguished when the claim of the heir with the right to a reserved (forced) share is upheld. It is necessary, in order to become the owner of the property, for the heir with a reserved share to file the special action under Art. 37 of Bulgarian Law on Inheritance. Although the text of the law speaks of the „annulment“ of the transaction done in favor of the third party and that legal doctrine considers this action as constitutive claim, the effect of upholding it is like awarding of an action for execution. The article advocates precisely the thesis that, similar to the regulation in the repealed Law on Inheritance of 1890, art. 37 of the Bulgarian Law on Inheritance provides for a rei vindicatio action for a reserved (forced) share.