Individualism and Traditionalism in Inheritance Law in Germany, France, England, and the United States

Abstract

Civil and common-law traditions treat surviving spouses and children differently. The surviving spouse has come to be increasingly protected in common-law and civil law countries. But civil law countries restrict testamentary freedom to protect the shares of children, whereas common-law countries allow the children to be disinherited. The gulf between common-law and civil law countries is, however, in the process of being closed by sociolegal practice and law reforms. In practice, nuclear family members (the spouse and children) everywhere remain the most frequent beneficiaries of inheritances. The attribution of individualist or traditionalist traits to legal concepts of inheritance seems to be futile when legal history is taken into account. The social consequences of inheritance rules depend on the specific historical, social, and economic conditions under which the rules function.