Despite being a somewhat rare term, the Cautela Socini is a fairly common testamentary clause. The Cautela Socini, also called socini clause or socinian caution, can be defined in a narrow and a broad sense.
Strictly speaking, it is a testamentary clause by which the testator leaves to the beneficiaries a value greater than their legitimate share provided that they comply with a condition or prohibition.
But what is the legitimate hereditary? The reserved portion is the part of the inheritance reserved by law to the forced heirs or legitimated heirs. The testator has to respect the reserved portion of the estate of the forced or legitimate heirs: children and descendants, ascendants and widowed spouse.
In a broad sense, it is any type of sanction imposed by the testator on any beneficiary of the estate, such as a legatee, whether or not there are legitimated beneficiaries.
What is a legacy? It is the testamentary disposition by which the testator leaves to a specific person a specific asset. This person is called legatee.
Our Civil Code does not expressly regulate the cautela socini.
There has been much discussion on the validity of this testamentary clause. Part of the doctrine understands that the cautela socini clashes with the intangibility of the legitimate.
What does intangibility of the reserved portion mean? It means that the law forbids the testator to impose a lien or condition on the reserved portion. For this reason, some understand that the cautela socini is an encumbrance of the reserved portion.
However, the jurisprudential doctrine of the Supreme Court declares the validity of the cautela socini, among them in SSTS 838/2013, of January 17, 2014 and 254/2014, of September 3.
Establishes the Supreme that, the socini clause is projected on the right of option of the legitimatist between:
Accepting the testamentary disposition and receiving a higher value than that which corresponds to him/her for his/her legitimate.
Rejecting the testamentary disposition and receiving what belongs to him exclusively for the strict legitimate share.
The socini clause does not coerce the free decision of the legitimate beneficiary who, in any case, can choose to receive in full ownership the strict reserved portion.
Consequently, the legitimate will be able to exercise legal actions in defense of his strict reserved portion, even knowing that he will lose the rest of what was left by the testator.
What is Socini Caution for?
1) Extending the usufruct of a widowed spouse.
It is frequent that the testator with children, in the event of death leaving a widowed spouse, wants to extend what corresponds to this one as legitimate.
That is to say, the legitimate share of the widowed spouse, if they concur to the inheritance with children or descendants, will be the usufruct of the third of improvement.
In this case, by means of the socini clause:
The testator bequeaths to the widowed spouse the universal and lifelong usufruct of the entire hereditary patrimony, with relief from making an inventory and providing a bond. In this way, what the testator intends is that the widowed spouse enjoys the inherited assets for life. Not only of the usufruct of one third of the assets, but of the usufruct of all the assets.
In turn, in order for the children to respect the universal and life usufruct of the widowed spouse, the testator attributes to them more than what corresponds to them by legitimate.
If the children accept the usufruct for life, they will have full ownership of the assets and, upon the death of the widowed spouse, they will acquire full ownership of the assets of the estate.
When one of the children does not accept it, he/she will receive the strict legitimate share and the part of the inheritance that he/she will no longer receive will accrue to the children who respect the universal usufruct of the widower.
If none of the children respect the universal and life usufruct of the widowed spouse, they will receive the strict reserved portion. In this case, the testator usually bequeaths to the widowed spouse the third of free disposition.
2) Prohibition to go to court.
This prohibition to go to court may be imposed by the testator on both heirs and legatees.
By means of this clause, the testator prohibits the heirs and/or legatees from going to court to settle disputes over the distribution of the inherited assets.
What exactly does the prohibition to go to court refer to?
According to the case law of the Supreme Court of 2014, what is important when applying the testator’s prohibition is to analyze the basis of what is judicially challenged:
If judicial intervention is sought to combat the dispositive and distributive scope ordered by the testator, the prohibition imposed by the testator is incurred.
For example, when the heir goes to court to contest the distribution of assets made by the testator or testamentary partitioning accountant.
In this case, the heir will receive his or her strict legitimate share and what the testator had left him or her in excess will accrue to the other heirs. On the other hand, the legatee will lose the legacy.
If judicial intervention is requested to combat other irregularities, such as the omission of inheritance assets, the adjudication of assets without the previous liquidation of community property, among others, they escape the sanction foreseen by the testator.