Compulsory portion
The compulsory portion in inheritance law ensures the next of kin, in particular the children and spouses, a minimum share in the estate . The compulsory portion is granted independently of the will of the testator, so it restricts the testator's freedom to testify .
history
Not all legal systems know a compulsory portion in the sense of a minimum participation with a certain quota in the estate. So z. For example, in the United States, financially independent children usually do not claim part of the estate unless something has been given to them. Spouses and dependent children receive a share based on need. Germany and most of the European states, however, follow the legal tradition from Roman law .
The financial and material needs of a child from the paternal inheritance , e.g. B. for the wedding equipment , the historical legal language calls hereditary equipment . This inheritance was understandably very different depending on the father's social status and played a very important role in limiting the marriage circle .
The restriction of testamentary freedom stems from the natural law notion that descendants and possibly ancestors are the natural heirs who should only be possible to disinherit in justified exceptional cases. In addition, the need to care for the children and widows also played a role, for example in the right to be present .
The amount of the compulsory portion is based on the amount of the inheritance, but depending on the legal system also on the number of heirs or the family relationship. There were also some special regulations that forbade the division of the inheritance and the payment of a compulsory portion in order to avoid real division .
The amount of the compulsory portion is regulated very differently. Until the creation of the Corpus iuris civilis by Emperor Justinian , Roman law regulated that the compulsory portion must make up 1/4 of the proportional inheritance. Justinian increased the rate to 1/3 in the event that the number of children was less than 4. This third was also found in many civil law books of the 19th century.
In French law, the number of children was / is graded:
| heritage | Share of the compulsory portion of the inheritance | Freely inheritable |
|---|---|---|
| 1 child | 1/2 of the inheritance | 1/2 of the inheritance |
| 2 children | 2/3 of the inheritance | 1/3 of the inheritance |
| 3 or more children | 3/4 of the inheritance | 1/4 of the inheritance |
| parents | 1/4 of the inheritance | 3/4 of the inheritance |
Legal situation in individual states
Individual evidence
- ↑ Johann Caspar Bluntschli: Development of the succession against the last will according to Roman law, with a special back to the novella 115 , Bonn 1829, page 161 ff., Online version
- ↑ For example in Nassau private law , see: Philipp Bertram : Das Nassauische Privatrecht , § 2212, online version
Web links
- jusmeum.de / ... - Wigo Müller: What you need to know about the compulsory portion.
