Intestacy and Forced Heirship Ondřej Horák Katedra ekonomie Skupina personálního managementu a práva 2 A) Two initial approaches to property and succession •we x I •family x individual •property (etate): ours (family) x mine (personal) •principle: necessity x autonomy • more recently: familiarization x individualisation •paradigma: family solidarity x freedom •origin: german x roman • 3 B) Two initial approaches to property and succession • •modern European legal orders as a compromise • • • • • vs. http://sarmatia.files.wordpress.com/2011/01/vyvoj-cloveka.jpg http://prashantb.files.wordpress.com/2012/01/600full-robinson-crusoe-poster.jpg 4 Principles of Law of Succession •a) principle of conservation of values •b) principle of transition to individuals •c) principle of testamentary freedom •(mitigated by the forced share) •d) principle of equality of persons •and matters •e) principle of universal succession •(mitigated by benefit of inventory) -influence of the Roman tradition •Emanuel Tilsch (1866-1912) •Dědické právo rakouské se stanoviska srovnávací právní vědy (1905) • Emanuel Tilsch (1866-1912) 5 Law of Succession in New CC •is based primarily on Austrian inheritance law, in which "he sees his pattern and is strongly inspired by him" •strengthens the testator's freedom in his disposition with property mortis causa •prefers "dead in front of the living" •Main source of inspiration: govern. draft of CC 1937 •Emil Svoboda - subcommittee deputy referee for inheritance law (Draft 1921 and 1924) 6 Emil Svoboda (1878-1948) •* Prague, studies of Prague law •ten years of legal practice •professor at the Faculty of Law in Prague since 1921, Dean in 1929/30 •legal-philosophical orientation •focus on family and inheritance law •subcommittee Deputy Referee Svoboda (Akademický bulletin) 7 •Privat Autonomy and protection of heirs • •A) testamentary freedom x the protection of the (forced) heirs = forced share, quarta Falcidia •B) universal succession x protection of heirs = benefit of inventory (reservation of inventory) • • • • 8 •testamentary freedom •x •protection of forced heirs •= Pflichtteilrecht - Forced Heirship • 9 Reasons of Inheritance •Inheriting takes place on the basis of • 1) inheritance contract, • 2) testament, or • 3) by means of a statute (Act). •These reasons may also operate together. • • 10 A) Statutory succession of heirs •six classes of heirs, cohabitant persons •1. class: inherit the decedent’s children [own or adopted, not stepchildren] and spouse, each of them equally. If any of the children does not inherit, his share is acquired equally by his children; the same applies to more distant descendants of the same ancestor. 11 B) Statutory succession of heirs •2. class: include the spouse, the decedent’s parents and those who lived with the decedent in the common household for at least one year before his death and, as a result, cared for the common household or were dependent in maintenance on the decedent. [cohabitant person] •Second class heirs inherit equally; however, the spouse shall always inherit at least half of the decedent’s estate. 12 C) Statutory succession of heirs •3. class: include decedent’s siblings and cohabitant persons; inherit equally. •6. class: include the children of the decedent’s siblings’ children and the children of the decedent’s grandparents, inherit equally. •If any of the children of the decedent’s grandparents does not inherit, his children shall inherit. 13 D) Statutory succession of heirs •6. class: include the children of the decedent’s siblings’ children [children of nephew or niece] and the children of the decedent’s grandparents, each of them equally. [aunt and uncle] •If any of the children of the decedent’s grandparents does not inherit, his children shall inherit. [cousins] • 14 Is inheritance guaranteed? Constitutional dimension of Czech inheritance law •Art. 11 the Charter of Rights: •(1) Everyone has the right to own property. The ownership right of all owners has the same legal content and protection. Inheritance is guaranteed. •(3) Ownership binds. It must not be misused to prejudice the rights of others or in violation of lawful general interests. ... •Art. 32 (1) Parenting and family are protected by law. Special protection for children and adolescents is guaranteed. 15 Inheritance is guaranteed! Constitutional dimension of German inheritance law •Grundgesetz für die Bundesrepublik Deutschland (1949) •I. Grundrechte (Art. 1-19) •Art. 14, Abs. 1) Das Eigentum und das Erbrecht werden gewährleistet. Inhalt und Schranken werden durch die Gesetze bestimmt. •Abs. 2) Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen. … •BVerfGE 112, 332 ff. (19. 4. 2005) „Familiensolidarität“ •Pflichtteilrecht – Erbrechtsgarantie und Schutz der Familie • 16 Forced Heirs •ABGB i DraftCC/37 (descendants/if not so ancestors; descedanst ½, ancestors ⅓ of legal share) •CC/50 (minor ch. full; adult ch. and ancestors in need ¾) •CC/64 (minor ch. full, adult ch. ¾, since 1991 ½) •CC/12 (only descendats; minor ch. ¾, adult ch. ¼) •genesis (for adult child draft 2005 ½, draft 2007 ⅓) •parents/ancestors: v.e. in Germany, Switzerland/France (until 2006), Austria, Poland • • 17 Forced share for spouses? •specific position of wife (widow's dowry ...) •ABGB 1811 (statutory succession of spouses by the 1st partial amendment in 1914) •original: Germany (BGB 1896), Switzerland (ZGB 1907) •new: Austria (ABGB, sin. 1978), France (CC, sin. 2001) •matrimonial property law: •s.c. koakvizice (Hungarian law), 1949 (Family Act), 1964 (CC), the community property of the spouses • 18 Community property of the spouses in CC •includes what was acquired during the marriage by one of the spouses individually or both spouses jointly •except for what (§ 709): a) serves the personal needs of one of the spouses, b) was acquired as a gift, inheritance or legacy by only one of the spouses c) was acquired by one of the spouses as compensation for non-pecuniary harm to his natural rights, d) was acquired by one of the spouses by a juridical act relating to his separate property, e) was acquired by one of the spouses as compensation for damage, destruction or loss of his separate property. 19 Resume „Protection“ of forced heirs in New CC •we prefare privat autonomy •we protected forced heir, but… •discontinuity with European legal and cultural convention (because of subject, counting donations…) • • • • • • Questions? •Thank you for your attention • • 20