Text file: 2255.txt
author: demokrat21
downvotes: 9
end consideration date: 2012-02-08
id: '2255'
number comments: 19
number views: 8313
proposal type: Competent authority response
response: "Response from the Ministry of Justice\nBy way of introduction, we would\
  \ like to clarify that on 22 October 2016, the amendment to the Law on Succession\
  \ (Official Gazette of the SRS, No.15/76, 23/78, Official Journal of the RS, No.13/94\
  \ - ZN, 40/94 - Decree of the US, 117/00 - Decree of the US, 67/01, 83/01 - CC and\
  \ 31/13 - Decree of the US) entered into force, which now provides as follows:\n\
  \"(1) The inheritance of the property of a person who has received assistance in\
  \ accordance with the social welfare regulations shall be limited to the amount\
  \ of the value of the assistance received, unless otherwise provided in the social\
  \ welfare regulations. This limitation shall be implemented in such a way that the\
  \ part of the testator's property corresponding to the value of the assistance received,\
  \ up to which the inheritance is limited, becomes the property of the Republic of\
  \ Slovenia, if the assistance was financed from the budget of the Republic of Slovenia,\
  \ or the property of the municipality, if the assistance was financed from the budget\
  \ of the municipality.\n(2) If the estate is without heirs and becomes the property\
  \ of the Republic of Slovenia, notwithstanding the provisions of the social welfare\
  \ regulations, the inheritance of the property of a person who has received assistance\
  \ under the social welfare regulations shall be limited to the full amount of the\
  \ assistance received, if the assistance was financed from the budget of the municipality.\n\
  (3) Property which becomes the property of the Republic of Slovenia or of a municipality\
  \ shall be handed over by a decision to the competent authority of the Republic\
  \ of Slovenia or to the competent authority of the municipality, as the case may\
  \ be.\n(4) Notwithstanding the provisions of paragraph (1) of this Article, the\
  \ court shall decide that the heirs shall inherit all the property of the deceased,\
  \ provided that they undertake to reimburse the Republic of Slovenia or the municipality\
  \ for the value of the aid given, to which the inheritance would be limited under\
  \ the provisions of the law.\n(5) The Republic of Slovenia or the municipality from\
  \ whose budget the aid was financed shall have a legal lien on the assets of the\
  \ estate as security for its claim under the preceding paragraph, until the full\
  \ repayment has been made.\n(6) Anything received by the deceased in cash or in\
  \ the form of an exemption from payment on the basis of a law or a general act of\
  \ a municipality on account of his/her poor financial situation shall be regarded\
  \ as assistance under the social welfare regulations.\n(7) The inheritance of a\
  \ person's property under this Article shall also be limited to the value of the\
  \ funeral expenses if the funeral expenses were borne by the municipality in accordance\
  \ with the provisions of the law regulating funerals and cemeteries.\".\nThe inheritance\
  \ of the property of a person who has received assistance under the social welfare\
  \ legislation is therefore limited under the amended legislation to the value of\
  \ the assistance received, unless otherwise provided for in the social welfare legislation.\
  \ The phrase that inheritance 'shall be limited to the full amount of the assistance\
  \ received, unless otherwise provided for in the social welfare legislation' means\
  \ that the part of the property corresponding to the value of the assistance is\
  \ not inherited, or, more precisely, that such property does not become part of\
  \ the estate which is subject to inheritance. The value of that part of the estate\
  \ must therefore be equal to the value of the aid received, unless otherwise provided\
  \ in the social security legislation.\nHowever, Article 54a of the Act on Social\
  \ Security Benefits (ZSVarPre; Official Gazette of the Republic of Slovenia, No.\
  \ 61/10, 40/11, 14/13, 99/13, 90/15 and 88/16) provides otherwise, namely:\n\"(1)\
  \ The inheritance of the property of a deceased who received assistance in accordance\
  \ with the social welfare regulations shall be limited to 2/3 of the funds received\
  \ by the deceased as a result of the exemption from the payment of social welfare\
  \ services and the contribution to the payment of the funds intended for the payment\
  \ of, or the supplementary payment of, the rights of a family helper.\n(2) In respect\
  \ of the extraordinary financial social assistance received under Articles 33, 34a\
  \ and 34b of this Act, the inheritance of the deceased's property shall not be limited.\n\
  (3) The inheritance of the property of a deceased who has received assistance under\
  \ the social welfare regulations shall be limited to the value of the assistance\
  \ received by the deceased by way of cash social assistance or a protection allowance,\
  \ if that assistance was granted to him because he owned a dwelling in which he\
  \ actually resided and had a registered permanent residence, the value of which\
  \ exceeded EUR 120 000, and who was temporarily unable to provide for his subsistence\
  \ by means of that dwelling because of circumstances beyond his control:\nand has\
  \ not received or has received no more than eighteen times in the last 24 months\
  \ cash social assistance; or\nhas received cash social assistance more than eighteen\
  \ times in the last 24 months and has consented to the entry in the land register\
  \ in favour of the Republic of Slovenia of a prohibition on the alienation and encumbrance\
  \ of immovable property of which he was the owner.\nThe Law on Social Assistance\
  \ therefore provides that, in most cases, inheritance is not limited to the value\
  \ of the total social assistance benefits, and in some cases (short-term), social\
  \ assistance benefits are not reimbursed at all or inheritance cannot be limited\
  \ on this account.\".\nEven if the conditions for limitation of inheritance are\
  \ met under the above provisions, there is no limitation of inheritance if the heirs\
  \ undertake to reimburse the Republic of Slovenia or the municipality for the value\
  \ of the aid granted, to which the inheritance would be limited under the provisions\
  \ of the law. In such a case, pursuant to Article 128(4) ZD, the court shall decide\
  \ that the heirs shall inherit all the property of the deceased. However, since\
  \ the heirs undertake to reimburse the value of the aid given, Article 128(5) of\
  \ the Civil Code provides that the Republic of Slovenia or the municipality from\
  \ whose budget the aid was financed shall have a legal lien on the assets of the\
  \ estate as security for its claim until the aid has been repaid in full. The statutory\
  \ lien is therefore provided for that situation only, and it is provided for the\
  \ purpose of speeding up the procedure for the repayment of the State's or the municipality's\
  \ claim in the event that it is not paid voluntarily. In the event of voluntary\
  \ payment, the State's or municipality's lien is, of course, extinguished.\nThe\
  \ proposal also suggests that the State or the municipality could enforce a legal\
  \ lien, which means that it would also have the option not to enforce it. The possibility\
  \ for the State or the municipality not to be repaid from the estate is already\
  \ provided for in Article 129 ZD:\n\"(1) The Republic of Slovenia or a municipality\
  \ from whose budget assistance to the deceased was financed in accordance with the\
  \ social welfare regulations may waive the right to reimbursement of that assistance\
  \ if the deceased's heirs, spouse or children are themselves in need of assistance,\
  \ or if the property which would become the property of the Republic of Slovenia\
  \ or the municipality would constitute a burden for it or would incur disproportionate\
  \ costs for the management or disposal of that property.\n(2) Under the conditions\
  \ set out in the preceding paragraph, the municipality may also waive its right\
  \ to reimbursement of the funeral expenses which it has borne in accordance with\
  \ the provisions of the Act regulating funerals and cemeteries.\n(3) The Republic\
  \ of Slovenia and the municipality may waive the right under the preceding paragraphs\
  \ within three months of the date on which they were notified of the opening of\
  \ the succession.\".\nThe provision of Article 129 therefore also takes into account\
  \ situations where the heirs of the deceased would not be able to reimburse the\
  \ assistance received by the deceased because they themselves are in need of assistance.\
  \ In addition, the ZD-C added another possibility under which no repayment would\
  \ be made, namely if the property which would become the property of the Republic\
  \ of Slovenia or of the municipality would be a burden for the State or the municipality\
  \ or would entail disproportionate costs for the State or the municipality in managing\
  \ or disposing of it.\nFinally, we would like to add that the Constitutional Court\
  \ of the Republic of Slovenia, when deciding on the constitutional compatibility\
  \ of the regulation on the limitation of inheritance, did annul the text of Article\
  \ 128 of the Law on Inheritance in force at that time (Official Gazette of the SRS,\
  \ No. 15/76 and 23/78 and Official Gazette of the RS, No. 17/91-I) (Decision U-I-330/97-28\
  \ of 30 November 1997). 2000 - Official Journal of the RS, No 117-4907/00), as it\
  \ was controversial, from the point of view of Article 33 of the Constitution of\
  \ the Republic of Slovenia, which guarantees the right to private property and inheritance,\
  \ that, under Article 128(3) of the Land Act, then in force, heirs were allowed\
  \ to reimburse the value of the aid received only with the consent of the grantor\
  \ of that aid. However, in the reasoning of the decision, the Court also stated\
  \ that, by the regulation laid down in Article 128 ZD, the legislator 'interfered\
  \ with the right to private property and inheritance (Article 33 of the Constitution)\
  \ in order to protect the right to social security of other citizens (Article 50(1)\
  \ of the Constitution). In order to achieve that objective, the interference with\
  \ the right laid down in Article 33 of the Constitution was necessary. Under Article\
  \ 50(1) of the Constitution, citizens have the right to social security under the\
  \ conditions laid down by law. The welfare State (Article 2 of the Constitution)\
  \ is obliged, on the basis of the right to social security, to provide the individual\
  \ who is deprived of social security with adequate assistance and may not jeopardise\
  \ that right by unjustifiably impoverishing the funds for the provision of that\
  \ assistance. In the present case, the protection of the individual's right to social\
  \ security requires that the State recover the aid received by persons who, although\
  \ they had assets at the time they received the aid, needed them for their own use\
  \ and those assets did not in themselves generate income. In such a case, it is\
  \ constitutionally permissible for the State, after the person no longer needs the\
  \ assistance, to repay the person from his or her assets that would otherwise have\
  \ gone to the heirs. Otherwise, the State would be unjustifiably reducing the means\
  \ of providing assistance to others who need it because they have no other adequate\
  \ means of subsistence.\"\nIn the light of the foregoing, we consider that the current\
  \ regime, taking into account the regime in Article 54a of the Law on Social Security,\
  \ is appropriate and the proposal is not suitable for further consideration.\n "
response date: 2018-04-16
response due date: null
sent date: 2012-01-10
title: Law on Succession - Article 128 Correction
upvotes: 18
url: https://predlagam.vladi.si/predlog/2255
