Topic
Forced heirship
About: Forced heirship is a research topic. Over the lifetime, 36 publications have been published within this topic receiving 80 citations.
Papers
Posted Content•
TL;DR: In this article, the authors analyse the nature and rationale of three new contractual instruments that were recently introduced into the succession laws of France, Italy and Belgium, and show that, although they are inherently different, all three instruments effectively enable testators and their heirs to derogate from rules of forced heirship.
Abstract: While in Germany, the use of contractual devices in the context of succession law is expressly admitted by law, legal systems belonging to the Romanistic legal family usually consider succession pacts, that is to say arrangements that concern a future inheritance, illegal. In fact, the Civil Codes of Belgium, the Netherlands, France, Italy and Spain contain provisions prohibiting succession pacts. At the same time, however, these Codes also allow for certain exceptions, the range of which leads one to question the very purpose of the ban. Recent reforms in some of these countries have challenged the ban on succession pacts even further, revealing a trend towards a ‘contractualisation’ of succession law. The article analyses the nature and rationale of three new contractual instruments that were recently introduced into the succession laws of France, Italy and Belgium. In doing so, it shows that, although they are inherently different, all three instruments effectively enable testators and their heirs to derogate from rules of forced heirship. This enhances their private autonomy, and also indirectly enhances the freedom of testation of the testator. The article further looks at the policy considerations behind the prohibition of succession pacts, and in particular the prohibition of pacta de non succedendo, both from an historical and a modern perspective. It attempts to show that not only can the traditional policy reasons used to justify the ban be overcome, but also that many of the risks facing the heir and his descendants are balanced by the advantages created by such pacts.
19 citations
Posted Content•
TL;DR: In this paper, the authors argue that forced heirship actually protects individual choice while also respecting intergenerational ties, and that the institution restrains competition and opportunistic behavior among siblings, reflecting the reality that we are alone in neither birth nor death and reins in the Cain-like tendencies that threaten to tear apart families.
Abstract: English Abstract: In the current academic debate on family and succession law, the abolition or reform of forced heirship is often advocated. It is argued that this institution does not respond to the expectations and needs of today’s society. In the realm of freedom embodied by testate succession by will, the mandatory share is framed as a contradictory restriction on the individual right to decide freely. This paper contributes to the debate on the legal and social basis of forced heirship by offering a moderate defence of the institution. I argue that forced heirship actually protects individual choice while also respecting intergenerational ties. Moreover, the institution restrains competition and opportunistic behavior among siblings. It reflects the reality that we are alone in neither birth nor death and it reins in the Cain-like tendencies that threaten to tear apart families. Spanish Abstract: En el debate academico reciente sobre el Derecho de Familia y Sucesiones es un lugar comun plantear la reforma o la abolicion de la legitima. Se argumenta que esta institucion no responde a las expectativas y necesidades de la sociedad actual. En un reino de libertad, como es el de la sucesion testada, la legitima supone una restriccion contradictoria con el derecho de las personas a decidir libremente sobre una parte de su patrimonio. Este trabajo intenta contribuir al debate sobre los fundamentos juridicos y sociales de la institucion de la legitima, asi como sobre su mantenimiento, con la discusion de algunos de los argumentos en su contra, ofreciendo una moderada defensa de la misma, sobre la base de considerar que todavia existen buenas razones para abogar en su favor. La legitima protege la libertad individual respetando a la vez los vinculos intergeneracionales, y previene las conductas oportunistas y la competencia entre hermanos, Este instituto refleja el hecho que no estamos solos al nacer ni tampoco cuando morimos, y puede ser util para mitigar el cainismo que tanto amenaza la convivencia familiar.
8 citations
TL;DR: In this paper, the authors discuss the rules of Islamic (Shari'a) succession law applicable in Islamic countries and the various possible ways in which a Middle East HNW individual can organize his or her affairs in order to limit the application of those rules, particularly by the use of Islamically complaint trusts.
Abstract: This article concerns the rules of Islamic (Shari’a) succession law applicable in Islamic countries and the various possible ways in which a Middle East HNW individual can organize his or her affairs in order to limit the application of those rules, particularly by the use of Islamically complaint trusts. Islamic Law has a complex and rigid system of legal rules which provide for a deceased person's estate to be apportioned among certain close relatives in definite fixed shares. This system of forced heirship applies generally to at least two-thirds of a person's estate. The opportunities to avoid the mandatory rules of forced heirship in Islamic law are perhaps fewer than in other similar systems of law and certainly fewer than the common law. The three main possibilities are lifetime gift, bequest/Will or waqf (an Islamic trust equivalent).
7 citations
Posted Content•
6 citations
Journal Article•
6 citations
Related Topics (5)
Performance Metrics
| Year | Papers |
|---|---|
| 2020 | 1 |
| 2019 | 4 |
| 2018 | 1 |
| 2016 | 1 |
| 2014 | 3 |
| 2013 | 1 |