Wednesday, August 5, 2020
Reinhard Zimmermann recently published an article entitled, Compulsory Portion and Forced Heirship in Historical and Comparative Perspective, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.
The essay traces the development of mandatory family protection from Roman law through the ius commune to the modern civilian codifications. The Justinianic reform of 542 AD had failed to streamline and simplify the pertinent rules of classical Roman law. It was left, therefore, to the draftsmen of the codifications from the end of the 18th century onwards to tackle that task. Two models were particularly influential; one of them can be found in the Austrian Civil Code of 1811, the other in the French Code civil of 1804. Germany adopted the Austrian model of a „compulsory portion“ (i.e. a personal claim for the value of a part of the estate). Outside of Germany, the French model of „forced heirship“ (part of the testator’s property is reserved to his closest relatives) was extremely influential at first. The essay then looks at reforms in a number of countries of the Germanic and Romanistic legal systems, with some of the Romanistic countries having undergone a change of system. Mandatory family protection by means of a compulsory portion thus appears to gain ascendancy. Apart from that the range of persons entitled to such compulsory portion tends to be drawn more narrowly today than in earlier times. Also, the quotas granted to persons entitled to mandatory family protection have, in many places, been lowered. Characteristic for a number of legal systems and reform drafts is also an endeavour to render the law concerning mandatory family protection more flexible. The power to deprive a person of his right to a compulsory portion, or to become forced heir, has been extended in some legal systems. Finally, in view of the long-standing tradition in the continental legal systems of fixed quotas it is interesting to see that, time and again, the concept of a needs-based claim for maintenance has been considered, or even implemented, particularly for the surviving spouse