Succession upon Death
1. Definition and interrelationship of forms of succession
The regulation of the order of succession is a central concern of every succession law system (succession law). Succession regimes provide regulatory structures that allow for the identification of the legal successor of the deceased as well as of those persons beneficially entitled upon his death. Two systems of succession can be distinguished, ie testamentary and intestate succession. Testamentary succession grants the testator personal autonomy to dispose of his assets mortis causa. It is characterized by freedom of testation. Statutory or intestate succession is subsidiary to testamentary succession. It is applied in cases where the deceased did not make a disposition mortis causa or where such disposition is invalid. The principle nemo pro parte testatus, pro parte intestatus decedere potest, ie that no one can be succeeded on the basis partly of testamentary and partly of intestate succession (Inst 2,14,5, Ulp. D.29,1,6), only applies in the continental European legal systems of Roman origin.
Intestate succession gives effect to notions of family succession. This notion is also reflected in testamentary succession through the concepts of compulsory portion and forced heirship (compulsory portion). Family succession grants certain relatives of the testator an entitlement to a share of the estate. The affected persons can be considered to belong to two groups. On the one hand, kinship constitutes the basis for statutory inheritance rights, on the other, relation by marriage to the testator (marriage). In countries that recognize registered partnerships of same-sex couples, civil partners have the same rights upon succession as spouses (same-sex relationships). Cohabiting couples of the opposite sex are recognized by succession law in those continental European countries where cohabitation is institutionalized in family law (Belgium, France, the Netherlands). In England civil partners are in any case entitled to family provision. As far as succession by kinship is concerned, adopted children (adoption) have the same legal right to inherit as biological offspring. In recent decades, the position of extra-marital children in succession law has been brought into line with that of legitimate children in the various European legal systems. In most countries the distinction no longer has any significance in determining the succession.
2. History of intestate succession
Historically, the distinction between testamentary and intestate succession is rooted in Roman law. The same applies to the relationship between both types of succession. In Rome succession ab intestato was only available in cases where either no will had been made, or the will was invalid ab initio or had subsequently become invalid. On the basis of the civil order of succession the sui heredes were first in line. These were persons who were subject to a special relationship of power with the head of the Roman familia (pater familias) (patria potestas in the case of legitimate offspring, and manus in the case of wives), but were freed from this power upon his death. The right to inherit was therefore not linked to consanguinity but rather to agnatic kinship as imparted by paternal power. Men and women had equal rights in civil succession. In the case of the sui heredes, succession followed a branch system (stirpes) and the principle of representation. The offspring and the wife in manu, who was equal in law to her children, each formed a branch, to which equal shares of the inheritance would be allocated. An heir who was more closely related to the testator represented the other members of his branch and excluded them from succession. If a son had died before the testator or if he had left the family unit, his children and wife in manu took his place (substitution). Succession based on branches and the principles of representation and substitution are concepts that are also recognized by modern systems of succession. The same applies to determining succession based on the degree of kinship. The degree of kinship also came into play where there were no sui heredes. In this case the estate of a freeborn testator devolved on the nearest agnatic relative in the collateral line. Several equally closely related agnates inherited per capita.
In the late Republic another type of intestate succession developed alongside civil succession, the so-called bonorum possessio intestati. Praetorian succession modified civil succession but did not replace it completely. For instance, it remained applicable in cases where the person appointed by the praetor, not also being the heir at civil law, did not request the bonorum possessio. At the same time, the praetor used civil succession in certain cases as the basis for praetorian succession. The idea of connecting the right to inherit to blood relationships, the so-called cognate relationship, came from the praetorian bonorum possessio intestati, which over time replaced the agnatic relationship based on civil law. The organizational idea of assigning beneficiaries to hierarchically-arranged classes or orders, where the lower order excluded the higher one from succession, was also developed in the right of bonorum possessio. Blood kinship could follow the female and male line. More closely related persons excluded those less closely related from succession. Equally closely related persons divided their share in the inherited estate on a per capita basis.
The law of succession in the Middle Ages was predominantly based on family succession. Medieval systems of succession displayed functional differences from Roman intestate succession, which had provided ‘catch-all’ rules where a person had died intestate. Medieval succession law regimes not only ensured the transition of private assets but also transferred political power (succession law). The fact that feudal tenure was hereditary strengthened personal relationships of power based on land. In terms of structure, the political nature of the system was reflected in the fact that the law of succession was based on kinship and clanship. The German principle ‘Das Gut rinnt wie das Blut’ (goods flow as blood does) expressed the principle that the individual was bound to the collective structure of the clan, which was thus naturally entitled to inherit. The surviving spouse was not protected by the law of succession, but rather provided for by means of matrimonial property law; male offspring were treated preferentially. Notably, women could not initially inherit land, which was so important for the exercise of political power.
With the beginning of the Age of Enlightenment, the law of succession lost its political function. The surviving spouse secured a position amongst the group of persons benefiting under succession law. The civil codifications in continental Europe of the 18th and 19th centuries cleared away the last remnants of feudal structure from the law of succession by entrenching the priority of testamentary over intestate succession and by insisting on the equality of intestate successors of the same rank, irrespective of gender.
3. Models of intestate succession in Europe
a) Succession by relatives
The organizing principle of succession by relatives in continental Europe is the creation of orders or classes of heirs. They allocate those related to the testator by blood or by law into different groups of persons entitled to inherit, and assign each of them a quota of the estate. The structure of the nuclear family during the Enlightenment period affected the development of the orders of succession, in that since that time most European succession law regimes have excluded more distant relatives of the testator and have limited the number of orders of succession. Descendants of relatives of more distant orders are not entitled to inherit (France, Greece, Austria). Only Germany and Scotland recognize the right to unlimited succession by relatives through the more distant orders. The general rule in Europe is four (Belgium, France, the Netherlands, Austria) or three orders of succession (Denmark, England, Czech Republic, Switzerland). In Poland only relatives of the first and second order of succession are entitled to inherit.
The members making up each order of succession vary depending on the country concerned. In the majority of continental succession regimes, collateral relatives have an independent right to succeed, both next relatives in a direct line of descent and in their own more distant order. These succession regimes are not, therefore, structured as parentelic orders, which combine beneficiaries descendent from the same ancestor (= parens). In Belgium, France and Luxembourg siblings and their descendants belong to the second order, alongside the testator’s parents, while all remaining ascendants belong to the third order and all other collateral relatives belong to the fourth order. In Portugal siblings and their offspring form the third order of succession while the other collateral relatives belong to the fourth order. In Denmark, brothers and sisters of the deceased’s father and mother first appear in the third order of succession; in Italy and Spain in the fourth.
In contrast, relatives of the collateral line are not independently entitled to inherit in Germany and Greece. They are only included as descendants of relatives of the direct line (parentelic system). European succession law regimes are unanimous in favouring the younger generation to the elder, insofar as offspring predominantly belong to the first order of succession while parents and grandparents, the so-called ascendants, belong to more remote orders of succession. All European succession regimes also recognize the subsidiary right of succession of the exchequer.
In contrast, the criteria according to which legal heirs are selected from amongst the different orders of succession and within each individual order differ in the various continental European succession regimes. Most legal systems structure the orders of succession hierarchically. If a person of one particular order is entitled to inherit, this will exclude relatives of more remote orders from intestate succession. In principle, this also applies to the revised French law of succession. However, an exception is made where one of the parents in the second order predeceases the testator and there are no siblings. In this case half of the inheritance devolves on the relatives of the predeceasing parent in ascending order, which means that the inheritance is split into a paternal and a maternal line. In Italy, the ordering of the classes of succession is not fixed, but decided on a case-by-case basis. However, some general rules have become established. Thus, direct offspring exclude all other relatives from succession and distant collateral relatives are only considered if there are no other potential beneficiaries.
Some European systems determine eligibility to inherit between members of the same order or class solely or primarily based on the degree of kinship. This is the case, eg, in Belgium, France and Portugal. The succession regimes in Germany, Greece and Austria, on the other hand, are based solely, or at least in the more closely related orders, on the principle of succession by branch and line. Within one and the same order, the principles of representation and substitution are decisive. In Germany and Greece succession is determined by the degree of kinship from the fourth order onwards.
Up until 1925, England was in a special position among the European systems of succession inasmuch as different rules applied to the inheritance of personal property and that of real property (property). Since then, however, the same rules of succession apply to the entire estate of the testator. English law also applies the parentelic approach to the testator’s relatives, however only in cases where a testator is not survived by a spouse. Thus, offspring are the first in line to inherit, followed by the parents or the surviving parent, and then the grandparents, aunts and uncles, their children and, in the last resort, the Crown. The testator’s offspring, siblings and their descendants as well as uncles and aunts are only entitled to the inheritance upon turning 18 years of age, or upon marriage if this occurs earlier. Until then the estate is held as a statutory trust (trusts) in the hands of the administrator of the estate (devolution of the inheritance/ universal succession).
b) Succession by a spouse
The position of the surviving spouse in the European orders of succession is as varied as succession by relatives. There is a consensus that the marriage must have existed at the time of accrual of the inheritance. A divorced spouse (divorce) is excluded from the circle of beneficiaries de lege lata. A surviving spouse, on the other hand, can expect to benefit under the law of succession in all European legal systems simply due to his status—irrespective of the duration of the marriage and also without consideration of his specific need. The spouse’s legal entitlement depends on the other persons who inherit alongside him. Apart from that, in continental Europe, the amount one spouse actually receives on the death of the other depends on the matrimonial property regime in which the spouses lived.
If, as in most European states, the matrimonial property regime adopted was joint ownership of whatever has been acquired during the marriage, the surviving spouse will generally receive half of the assets jointly generated during the marriage. The other half of the acquired property and the testator’s private assets are distributed according to the rules of succession. In countries where there is, bound on a separation of property, an equalization of accrued gains upon the death of a spouse (Germany, France), the accrued gains are excluded from the estate.
The spouse’s share in the estate is organized differently in the various European legal systems. The idea that the spouse should not receive an independent share in the estate, but should only have a usufructuary right to the testator’s assets, is on the retreat in Europe. No continental European system currently in force regards the spouse solely as the beneficiary of a usufruct. In France, which originally followed this principle, the spouse has, since 2001, the right to choose between the usufruct of the entire estate and a share amounting to a quarter of the estate (similar to Luxembourg, which provides for a potential higher share). Spanish law limits the spouse alongside children and ascendants to a usufruct, but otherwise grants him a share in the estate. Belgian law gives a spouse a legal share that is equivalent to a usufruct to the whole estate if he inherits alongside descendants. Otherwise, it depends on the matrimonial property regime. If there was separation of property, the usufruct remains applicable, whereas if a common property regime was adopted by law or by contract, the surviving spouse acquires property rights over the marital estate and also acquires a usufruct over his own estate.
In Denmark, Germany, Greece, Italy, Austria, Portugal and Sweden, on the other hand, the deceased’s spouse is always a statutory heir. The amount of his share depends on the relatives who also inherit. The extent of a spouse’s inheritance rights in England also depends on which other relatives are co-entitled. If the spouse has to share the estate with the deceased’s offspring, he will receive up to £125,000, as well as the personal chattels; if he inherits alongside the deceased’s parents, siblings or their offspring he will receive up to £250,000; if the value of the assets is less, he inherits the entire estate. Furthermore, if there are offspring, the spouse additionally receives a life interest in half of the remaining estate. If he inherits alongside parents, siblings and their offspring, the spouse will acquire an absolute interest in this half of the property. If there are no relatives of the first and second parentelic order, the spouse is in any case the sole heir.
The Dutch law of succession follows an entirely different concept. The entire estate including liabilities devolves ipso iure on the surviving spouse. The children have a contractual claim against the surviving parent in the amount of the value of their intestate share. This becomes, in principle, enforceable only upon the death of the remaining spouse.
4. Key features of a uniform law of intestate succession
Defining the rights of the surviving spouse is one of the most difficult questions that would be raised by any attempt of unifying European law in the field of intestate succession (Dieter Leipold). As a matter of fact, the solutions adopted by different European legal systems are quite diverse in terms of both the law of succession and the matrimonial property regimes. Both areas of law are interrelated. A European succession regime concerning the surviving spouse will always need to consider the various compensatory instruments of the individual matrimonial property regimes.
Still, however, there are a number of trends characterizing the discussion about legal unification: the strengthening of the relationship between the spouses is based on a paradigm shift in the law of succession, moving away from a ‘vertical’ (focusing on the relationship between parents and offspring) towards a ‘horizontal’ approach (ie an approach increasingly focusing on the spouse as the heir who is primarily in need of support). In continental European legal systems, the spouse’s entitlement is being extended from a usufructuary right to a right of ownership and the share of the inheritance due to him is being increased at the expense of the relatives. In the case of small or medium-sized estates, the spouse is to be the sole legal successor.
In terms of a uniform law of succession by relatives, a limit on the number of orders of succession should be considered. As this is already widely accepted in Europe, a maximum of three orders of successions would appear to be realistic. The parentelic system allows for a further reduction of beneficiaries, as collateral relatives are not independently taken into account. The system based on the degree of kinship can be abandoned in a succession regime that is limited to close relatives. Finally, it may be considered to increase the surviving spouse’s share of inheritance alongside the children.
Suggestions have so far been restricted to the revision of the traditional continental European succession law systems. The question remains whether the Dutch concept might not be the most forward-looking, given the demographic changes and the evolution of the family structures (family). In this system the spouse retains the entire estate as the basis for her livelihood, as long as she lives. The same result is achieved by the fixed sums of money employed by the English model of regulation, which exhaust the value of small and mid-sized estates at the expense of the relatives. It has rarely been discussed, so far, whether the duration of a marriage should determine the spouse’s right to inherit. The increased importance of the spouse in the law of intestate succession, at the expense of succession by relatives, would probably be more readily accepted in cases where the deceased was married only once and that marriage lasted a considerable period of time.
LM Friedman, ‘The Law of the Living, the Law of the Dead: Property, Succession and Society’ (1966) 29 Wis L Rev 340; Stephen M Cretney, ‘Reform of Intestacy: The Best We Can Do?’ (1995) 111 LQR 77; Marius J de Waal, ‘The Social and Economic Foundations of the Law of Succession’ (1997) 8 Stellenbosch L Rev 162; Dieter Leipold, ‘Europa und das Erbrecht’ in Festschrift Alfred Söllner (2000) 647; Walter Pintens, ‘Die Europäisierung des Erbrechts’ (2001) 9 ZEuP 628; JC Sonnekus, ‘The New Dutch Code on Succession as Evaluated through the Eyes of a Hybrid Legal System’ (2005) 13 ZEuP 71; Marius J de Waal, ‘A Comparative Overview’ in Kenneth GC Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) 1; DH Parry and R Kerridge, The Law of Succession (12th edn, 2009); Inge Kroppenberg, ‘Nationale Rechtskulturen und die Schaffung eines europäischen Erbrechts’ in Herbert Roth (ed), Europäisierung des Rechts (2010) 103; Alain-Laurent Verbeke and Yves-Henri Leleu ‘Harmonisation of the Law of Succession in Europe’ in Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, 2011) 459.