Protección del crédito frente al repudio de la herencia en el Derecho Sucesorio.

Abstract

The renunciation of an inheritance constitutes an expression of the beneficiary’s freedom; however, it may affect creditors when it reduces the possibility of satisfying their claims. This research aimed to determine the extent to which Article 1261 of the Ecuadorian Civil Code guarantees the effective protection of creditors, given the absence of specific criteria for determining and proving the harm caused by the renunciation. A doctrinal legal research methodology with a qualitative approach was applied through a normative, doctrinal, case-law, and comparative analysis of the legal systems of Ecuador, Spain, and Argentina. The results showed that Ecuadorian law provides a protective mechanism that allows creditors to request judicial authorization to accept the inheritance renounced by the debtor, limited to the amount of their claims. Nevertheless, its application presents difficulties because harm cannot be presumed solely from the existence of the claim and the renunciation. It must be proven through a comprehensive assessment of the amount owed, the debtor’s financial situation, the existence of other assets, the value of the renounced inheritance, and its actual impact on the possibility of recovery. It is concluded that reforming Article 1261 is not essential; instead, its application should be strengthened through consistent interpretative and evidentiary criteria that balance testamentary freedom, credit protection, and legal certainty.