Forced Heirship Research Articles

Javni poredak i nužni deo

Testamentary freedom is one of the basic pillars of inheritance law in any legal system. In Eurocontinental law, it is limited, inter alia, by the right of the heir to a statutory portion (forced heirship). On the other hand, Anglo-Saxon law does not recognize the forced heirship. In Europe, there is a tendency to narrow the circle of mandatory heirs. Testamentary freedom is guaranteed in modern Constitutions, while, on the other hand, it is disputed whether the right to inheritance, guaranteed by the Constitutions, also includes the right of heirs to a mandatory portion. In German law, which is based on the decision of the Federal Constitutional Court from 2005 the right to a forced heirship is considered as a part of public order, even as a part of international public order. On the contrary, in France and Hungary, in situations of crossborder inheritance, the right to a forced heirship does not belong to the domain of international public order. Considering the language and aim of Articles 58, 59 and 66 of the Constitution of the Republic of Serbia, it is difficult to argue that the heir’s right to a mandatory share is covered by the constitutional guarantees enshrined in Articles 59 and 66. On the contrary, Article 58, which guarantees peaceful enjoyment of property rights, and Article 23 (2), guarantee freedom of testamentary disposition. The same is the case with the European Convention on Human Rights, which guarantees freedom of testamentary disposition, but not the right to inherit. A foreign law that does not recognize the right to a forced heirship is not contrary to domestic public order. It is possible that the foreign law contains some kind of functional equivalent that aims to financially secure the mandatory heirs which is the case in Anglo-Saxon legal systems. The application of the lex fori fori allong with the application of the lex successionis is contrary to the principle of fairness in Private International Law. Also, it results in dépécage which is undesirable in PIL and runs counter to the principle of the unity of inheritance property. The application of foreign law governing the inheritance in the Serbian PIL could be limited only in exceptional cases. For example, when the foreign applicable law does not recognize any functional equivalent to a mandatory portion or when the foreign applicable law does not recognize the decedent’s minor children any claim to the inheritance property, so that they remain deprived of means necessary for life and, therefore, fall under the burden of state social assistance. Also, for the application of the part of lex fori, it would be necessary that the case of crossborder inheritance is closely related to domestic legal order. For example, that the mandatory heirs are citizens of Serbia with domicile in Serbia.

Can Italian forced heirship rights be enforced in England? Some remarks on the Del Curto decision

Abstract This case concerns the enforcement in England of a judgment where an Italian court ordered that the natural daughter of a deceased should receive a certain share of her father’s estate. It is not the assertion of a forced heirship entitlement but the application of Italian intestacy rules. The Master’s decision raises some questions as to the enforceability in England of an Italian judgment in a matter of succession. It is hoped that this will be clarified on appeal.

COMPARATIVE ANALYSIS OF INHERITANCE LEGISLATION IN UKRAINE AND POLAND: CIVIL AND TAX ASPECTS

This comprehensive study delves into the inheritance laws of Ukraine and Poland, shedding light on their common features and distinguishing factors. In an era of increasing cross-border estates and globalized family structures, understanding the intricacies of inheritance laws in these two nations is of paramount importance. The analysis begins by exploring shared legal terminology and concepts, such as "testament," "intestate succession," and the emphasis on family and kinship in determining inheritance rights. Both countries provide provisions for disinheritance under specific circumstances and establish succession rights for spouses and children, underscoring the significance of familial relationships. However, significant disparities emerge in several key areas. Variations in inheritance taxation structures are evident, with Ukraine employing preferential tax rates for close relatives, while Poland bases taxation on asset value. Formalities for creating valid wills diverge; Ukraine allows for simple handwritten wills, while Poland demands more formal notarial requirements. Ukraine's forced heirship provisions safeguard certain family members' minimum entitlement to the estate, a contrast to Poland's absence of strict forced heirship. The study underlines the influence of socio-economic factors, with Ukraine's post-Soviet heritage and Poland's transition from communism shaping their respective legal landscapes. It offers crucial policy recommendations, including the harmonization of inheritance taxation structures, balanced forced heirship provisions, and guidelines for cross-border estate planning. In an increasingly interconnected world, the need to harmonize inheritance laws becomes evident, ensuring fairness, predictability, and the protection of individual and familial interests. This research contributes to a deeper understanding of inheritance laws in Ukraine and Poland, providing valuable insights for individuals, legal practitioners, and policymakers navigating cross-border estate planning and succession cases.

Case law on foreign trust recognition in Spain

Abstract As Spain has no trust regulations at a national level and did not sign the Hague Convention on Trust Recognition, most regions of Spain have forced heirship rules and—based on the Supreme Tribunal case of 2008—it is usually understood that Spain does not recognize foreign trusts. However, the analysis of the case law since 2008 shows a different scenario. If a Spanish settlor establishes an inter vivos foreign trust, such trust is considered legal and recognized. Furthermore, if the foreign trust is challenged by the heirs of the said Spanish settlor who argue there is a violation of forced heirship rules, such claims could only prosper once the trust is terminated and it can be proven there is an actual violation of forced heirship rules.

Cyprus international trusts as a legal arrangement that is immune to forced heirship claims

Abstract The portions of a deceased’s estate that can effectively be passed to surviving family members depend largely on the laws and regulations of each jurisdiction coupled with applicable EU Regulations and international conventions. Succession laws, wills and trusts, may face the challenges of forced heirship provisions that one may attempt to bypass by creating an inter vivos or testamentary trust, but which carry the risk of being disputed. Cyprus trust law does not recognise forced heirship claims against trust assets. The law relating to inheritance or succession in Cyprus or in any other country does not in any way affect any transfer or disposition of assets to a Cyprus International Trust or the validity of the trust.

유류분 제도와 가족의 연대

The forced heirship system has been implemented since 1979 in Korean Civil Act, but its functions are open to doubt nowadays due to the change of social and economic structure. Nevertheless, the forced heirship system should not be abolished. It is a part of the institutional guarantee according to the Article 36 ① of Constitution, because it prevents the dissolution of family solidarity by protecting the legal heirs from the decedent’s unrestricted disposition of property. However, the current forced heirship system and its relevant precedents falls short of the constitutional standard in that it does not provide the minimum protection for family system. First, the legal status of the co-heir who received devises and bequests changes to a third person according to the article 1114 of Korean Civil Act as soon as he renounces inheritance. It means the other co-heirs claim the return of the legal reserve against him in effect, so it would incapacitate the forced heirship system. Second, the precedents cut the forced heirship system from the contributory portion of the legal heir, so the heirs who received some devises and bequests in return for their special contribution to the decedents should rather recover the shortage of the legal reserve of co-heirs who has no contribution in the case which the decedent leaves no property. The contributory heirs can receive compensation neither in the process of inheritance division or from the lawsuit for the recovery of legal reserve of inheritance, which is against equity between family members and undermine the family solidarity.

Forced heirship and Jersey trusts—the Islamic perspective

Abstract Sharia law is very specific about how a deceased person’s estate is to be divided between their close relatives. For those of Islamic faith who wish to have more freedom in these cases where there is difficulty in freely passing wealth down to family members, the concept known as “forced heirship”, Jersey trusts law may provide one solution. Under Jersey trusts law, the settlor has complete freedom over how the property is to be held and who should benefit from the trust. Article 9 of the Trusts (Jersey) Law 1984 sets out that where a testator who would otherwise be subject to forced heirship provisions settles property on a Jersey law trust, all matters in respect of the trust shall be determined by Jersey law, even if there is another conflicting law at play. Article 9 also provides that no judgment of a foreign court will be given effect to the extent that it is inconsistent with Article 9. Jersey’s firewalls have not been tested specifically with regard to Sharia law forced heirship claims. However, they have been shown to be robust in respect of other foreign law claims. There are some practical constraints which could weaken the protection afforded by Article 9, e.g. where the assets are not located in Jersey so that a foreign court would have jurisdictional reach over the assets. As such, one should consider carefully how to draft the trust documents in order to mitigate such risks.

Excluding Forced Heirs due to a Lack of Personal Relationship with the Deceased in Spain in a Comparative Perspective

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.

A plea against withholding rights under French law: a view from the international practice

“Introducing again a droit de prélèvement which would be available for all heirs of all nationalities would create a new exception to the conflict of law rules which have been adopted in the regulation, in contradiction with its objective. In addition, it is far from certain that the reintroduction of this droit de prélèvement would necessarily come within the scope of the exception of public policy under article 35 of the regulation […] Indeed |…] the regulation aims at providing a greater predictability in the area of succession law […] and this could lead the European Court of Justice to consider that a Member State could not systematically exclude any foreign law which would not organise forced heirship rights. The reintroduction of a droit de prélèvement would therefore lead to a great risk of annulment of the new rules by the European Court of Justice in proceedings for failure to fulfil an obligation, or in proceedings for a preliminary ruling.” 1

Restauratio Iustinianus. Despre reforma dezmoștenirii în dreptul succesoral român

The struggle between testamentary freedom and family protection is one of the enduring challenges in the field of succession law. This paper is exclusively concerned with the Civilian tradition, where efforts to bridge the gap between said ideals generally follow two main models. Some legal systems maintain the Roman model of allowing the testator or testatrix to lift the forced heirship in cases strictly provided by the law, whilst others prefer the Napoleonic paradigm of depriving the deceased of said power. Romanian succession law has experienced both models, with the former dominating the medieval and early modern law and the latter only introduced in the second half of the 19th century, with the legal transplant of the Code Napoléon. The present study argues that certain changes introduced in the Civil Code of 2009, specifically empowering the decedent to lift the effects of unworthiness and explicitly regulating the regime of disinheritance, foreshadow a return to the Roman paradigm.

Forced Heirship and Disposable Portion Under the Tegulations of the New Romanian Civil Code

Forced heirship is the part of the inheritance assets to which forced heirs are entitled under the law, even against the will of the deceased, manifested through liberalities or by disowning. In opposition to heirship/reservation, the part of the inheritance within which the one leaving it can freely dispose of their goods is known as disposable portion. In case there are forced heirs and the deceased person has made during his lifetime donations or bequests, the chart of heirs left behind is divided into two parts: forced heirship and disposable portion. Forced heirship is justified by the fact that it has been and it is meant to preserve a part of the assets left by the deceased person in the family, being conferred to blood relatives close to the deceased and to the surviving spouse.

Local trusts and forced heirship (Commentary to the “CRO” case) C. R. O. c/C. O. N. y otros s/nulidad de acto jurídico (22 October 2019) Court: Civil and Commercial Law, Chamber of Appeals of Necochea (Buenos Aires Province—Argentina)

Abstract This recent case is a leading case relating to local trusts and forced heirship. Forced heirship is a restriction to the liberty to write a will and determine the destiny of his/her future estate by the testator. It can be found in all South America (not in Latin America from Panama to México) and in most Civil Law countries in Europe, besides similar restrictions under sharia law. The way to avoid these restrictions has been the creation of a foreign trust over foreign assets. Although authors have long analyzed whether a local trust allows the avoidance of local forced heirship rules over local assets, there has been no case law in this respect (at least since the inclusion of the trust in Argentine law in 1995). In short, this is the first time a local trust over local assets has been under the scrutiny of the courts to determine if there is a violation of forced heirship.

Overview of the Forced Heirship Rules Under the Code Civil Mauricien

The Republic of Mauritius follows the forced heirship rules as derived from the French Napoleonic Code. This review article will demystify the forced heirship rules and the succession principles under the Code Civil Mauricien. The heirship rules for the surviving spouses will also be established with the view of demonstrating how the latter can also be part of a succession in the absence of any testamentary provisions. Discussions regarding the peculiarities related to the distribution of the succession such as the division-in-kind and licitation will also be established. Finally, the review article will conclude with the renunciation of heirship and its consequences. Jurisdiction: Republic of Mauritius

Generational transition and transfer “mortis causa” of family business in Spanish Law

The most crucial challenge for family businesses is the transfer to the next generation. It affects both the leadership and the ownership of the enterprise, whether individual or corporate. Transferring the ownership of the organization at the time of the death of the owner, raises important questions in the Spanish Civil Code system, in which inheritance contracts are not allowed, and there are rigid forced heirship provisions, which limit the testator's freedom. The correct and appropriate transmission of the family business requires adequate planning, which must lead to write a will -to avoid intestacy-, and make use of those special mechanisms that contemplate the payment of the forced heirship with money outside the state, as well as those others allowed in Spanish law that help to channel the phenomenon. Succession planning also requires being vigilant to comply with the legal requirements for obtaining benefits in inheritance tax.

The EU Succession Regulation and forced heirship: a potential violation of German public policy?

The author examines whether the application of foreign law on forced heirship as specified by the EU Succession Regulation could lead to a violation of German public policy and thus trigger the application of Article 35 of the Regulation on public policy. Particularly, the author explores whether and under what conditions this could happen if the law of another EU Member State, which allows deprivation of forced heirship under circumstances that are not deemed sufficient pursuant to German law, is applicable to a deceased's succession. The problem of a potential violation of public policy due to the application of foreign law on forced heirship is especially significant in Germany due to the (unusual) constitutional protection that attaches to an entitlement to forced heirship and due to the large number of foreigners living in the jurisdiction. The article considers the relevant provisions of the EU Succession Regulation, German public policy doctrine, and the law on deprivation of forced heirship in selected EU Member States.

The Right to Forced Heirship in the Legislation of Ukraine and Foreign Countries

Investigated the combination of the basic principles of inheritance law — freedom of will and state legal protection of the interests of disabled family members and relatives. Analyzed the principle of freedom of will which is typical for all developed legal systems. It is established that the legislation of Ukraine does not contain a definition of the freedom of will, but there is no doubt about the existence of this principle, which follows from an analysis of the Civil Code of Ukraine. It has been determined that the institution of the forced heirship is a social security measure that is designed to financially support the category of people who need special protection. Analyzed the aspects of the limitation of the freedom of will. The first restriction on the freedom of will is the right to demand heirs under the law against heirs under the will, another restriction is applied through the reserve system. The analysis of the legislation of foreign countries in the field of forced heirship. It has been determined that most European countries include the children of the testator and, in some cases, the widow (widower) and the parents of the testator as forced heirs; instead, Ukrainian law classifies the number of forced heirs as minor, adult disabled children of the testator, disabled widows (widowers) and disabled parents. Have been studied the novelties of the legal regulation of inheritance of the forced share in Austria, Hungary, Belgium and other European countries. Investigated the tendency to reduce the number of obligatory heirs by depriving the widow (widower) and the parents of the testator. But it is possible for these persons to go to court with a lawsuit on establishing usufruct on the property of the testator.

Parens Patriae and the Disinherited Child

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up solutions largely based on the two models currently employed by other countries: 1) the forced heirship approach, in which all children are entitled to a set percentage of their parent’s estate; and 2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the testator’s surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-a-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state’s inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts should refuse to enforce testamentary schemes that disinherit those children if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is more deferential to testamentary freedom. The limitations it does impose represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy.

The unbearable lightness of forced heirship: the Czech perspective

The law of forced heirship establishes the specific and essentially unlimited right of persons who are in a close family relationship to the settlor to an indefeasible share of a deceased person’s estate, or for monetary performance amounting to the value of such a share. This limitation of one’s freedom to dispose of one’s own estate, however, has raised many doubts at the beginning of the 21st century. It also appears that current national succession laws in many European countries often do not react adequately to the development of new forms of inter-generational family estate planning. The aim of this article is to illustrate the ambivalent nature of the concept of forced heirship in the context of foundation and trust structures in the Czech Republic.

Hasta que la muerte los separa. Legítima, derecho de propiedad y prohibición de disposición del titular de los bienes: un ejemplo práctico de inconsistencia normativa

La institución de la legítima ha generado un interesante debate entre la doctrina iusprivatista que atañe a dos cuestiones estrechamente emparentadas con la teoría del Derecho, como son la función y estructura del ordenamiento jurídico. En el presente artículo examino cuáles y de qué tipo son las razones que se ofrecen a favor y en contra de la legítima. Esto me permite distinguir las razones justificativas de las identificativas del Derecho. Es decir, las que se refieren al porqué de la legítima de las que informan de qué es la legítima, o lo que es lo mismo, cuál es la configuración de este instituto en el ordenamiento jurídico. A continuación examino la compatibilidad de la legítima con los derechos de herencia y de propiedad tal como vienen enunciados en la Constitución española. Propondré entonces dos posibles interpretaciones del enunciado constitucional que vincula ambos derechos y mostraré qué argumentos sustentan una y otra. Finalmente pongo de manifiesto la incoherencia de la legítima con una de las dos posibles interpretaciones del art. 33.1 de la Constitución española y la dudosa compatibilidad con la otra al situar en una posición de privilegio a ciertos parientes del causante, o si se prefiere, en una posición de no derecho al propietario de los bienes. Es decir al titular de un derecho que goza de garantía institucional. El artículo concluye con un apéndice en el que i) identifico el tipo de inconsistencia que introduce la legítima en el ordenamiento jurídico español, y ii) propongo reconducir el debate a partir de una distinción adecuada entre el ámbito de justificación e identificación del Derecho.

Forced Heirship in Spanish Law

Although the Spanish Civil Code is especially restrictive on the will of the deceased since it imposes the duty to protect the family by means of fixed shares called legitimas, this system has been softened in the latest legal reforms, testamentary practices and a new, more flexible orientation of case law on the causes for disinheritance since 2014. Legal institutions such as the mejora (improvement of some of the forced heirs), the non-penalising nature for the testator on the rules on unfair disinheritance or intentional omission (preterition) or payment of the legitima in cash in some cases give the testator some margin for decision-making despite the high amount of the forced share (two thirds of the estate for the descendants). Nevertheless, the legal system is still held to be excessively restrictive in the eyes of society and the legal community alike. This has therefore brought about various different proposals for reform, ranging the keeping of the current system but with various reforms such as reducing the forced heirs and amounts, converting it into a post mortem maintenance right in the measure of the real needs of the relatives and spouse or the abolishment of the forced heir altogether. This paper examines the history of forced heirship in Spain and assess critically the law in force as for the beneficiaries, the calculation and protection measures, the usual techniques to override in practice and the arguments in favor of the preservation of the forced heirship or in favor of a greater freedom of testation, with account of the latest developments in case law and the recent 2017 proposals to reform the Law of Succession in this respect.