Abstract
Forced heirship is considered a limit on the freedom of will of the deceased in favour of intergenerational solidarity. It involves that some relatives, usually descendants, have the right to claim a share of the deceased’s assets or estate. Although recognized in most EU jurisdictions, authors discuss about the need to regulate this institution taking into account new family models and societal changes. In fact, this debate has been intensified due to the COVID-19 pandemic, which showed that several elders died alone in nursing homes without family support, and part of their assets shall be reserved to their relatives. This paper analyses the legal framework of forced heirship in Spain and examines to which extent it is possible to exclude this right due to a lack of personal relationship with the beneficiaries in view of comparative models.
Highlights
During 2020, the COVID-19 pandemic added significance to the debate about family and intergenerational solidarity: at a first step of the pan-Rosa M
Forced shares are considered a mechanism within succession law to keep intergenerational solidarity, but new family models and changes in family care increased the debate on their existence
The COVID-19 pandemic highlighted that many older people died in isolation, without family support, but part of their estate still had to be assigned to some family members
Summary
During 2020, the COVID-19 pandemic added significance to the debate about family and intergenerational solidarity: at a first step of the pan-. Succession law varies among Europe, but most EU countries, like Belgium, France, Germany or Austria,[9] regulate forced heirship or reserved shares of the inheritance, which limit the freedom to dispose of property upon death This is usually an ius cogens measure to protect property interests of persons close to the testator[10], and has its origins in Roman Law (querella inofficiosi testamenti)[11]. This paper analyses the legal framework of forced shares in Spain, taking into account the differences among Spanish Autonomous Communities (hereinafter CA; NUTS II); examines the grounds of exclusion of this right and, in particular, the possibility to exclude it due to a lack of personal relationship with the beneficiary, while discussing the need to keep or not this institution in the light of current family models. This paper follows a dogmatic analysis of current Spanish legislation, discusses last judgements on the possibility to exclude forced heirs due to a lack of relationship and makes a comparative law analysis with other EU jurisdictions
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