The concept of inheritance by law was introduced in Roman law. The lawyers of antiquity needed to understand how the death of a citizen can influence legal relations in which he participated during his lifetime. Civil circulation must be sustainable and, in fact, should not depend on death. In order to avoid adverse legal consequences, special norms have been developed. Consider briefly the inheritance by law in Roman law .
Basics of Succession
The following principles were established in Roman succession law :
- Legal relations in which the deceased participated, with his death do not stop.
- The place of the deceased citizen is taken by his heir.
- The assignee assumes all duties and rights of the person.
- As part of the hereditary masses , the debts of the deceased also pass.
- Inheritance is all property of a citizen that can be transferred.
- The duties and rights associated with the identity of the deceased shall not pass to successors.
Explanations
Inheritance by law in Roman private law was understood as universal succession (succession). It suggested that the entire property complex passes to the heirs as a whole at the same time, with all liabilities and assets.
Inheritance was considered a succession in all the rights that the deceased was endowed with. As a result, there was a kind of continuation of the legal identity of the testator in the person of the successor.
Terms
The basis for the onset of succession was a fairly complex legal composition. Its elements were:
- The death of the testator. The inheritance of a living citizen is not transferred.
- The legitimacy of the deceased to have successors. She, for example, did not have the Unian Latins (non-citizens).
- The successor must be alive at the time of opening the inheritance and have passive testamentary legal capacity.
Inheritance forms
In Roman law, succession occurred by law or by will.
In normative acts, these two forms are clearly distinguished. In Roman law, citizens could not inherit part of the will and part of the law. Accordingly, succession in the will of a certain share of the property led to the fact that obligations and rights were transferred to the subject on the unpaid part.
By default, the testator’s desire was made to make a successor by testament the owner of the remaining unclaimed values.
Inheritance by Law in Roman Law
It took place if the deceased did not leave a will, if it is invalid or if the subjects indicated in the last will refused succession.
The condition of inheritance by law in Roman law was the final clarification of the fact of non-occurrence of inheritance by will. Accordingly, the case was not opened until the subjects indicated in the last will decide whether they will accept the inheritance or not. After clarifying this issue, a citizen was called for succession, who came first in the order of succession. According to the law , if the specified entity refused succession, the next one was called to inheritance.
In different epochs of the development of the legal system, the sequence of inheritance under the law was different.
Act XII Tables
In Roman law, inheritance by law was based on agnatic kinship. It was determined by subordination to the father of the family.
Testament in ancient Rome was used quite rarely, although it was allowed by the norms. The laws of the XII tables determined the following succession order: if someone dies without a will and in the absence of his direct successors, the nearest agnat is called for inheritance. If there is none, the property complex is transferred to the members of the clan.
Thus, in Roman law, the scheme of inheritance by law was as follows:
- First of all, included persons subject to living with the father of the family, who at the time of the death of the testator of the subjects in "foreign" dependence, became legal. These included children, grandchildren, etc.
- In the second turn, the nearest agnatians entered. They called for inheritance in the absence of persons of the first group.
- The third stage consisted of members of the same kind with the testator.
In case of non-acceptance of the inheritance by the first group, it became "lying". If the first stage refused succession, the second did not receive anything.
Praetor Law
It made significant changes to the law of inheritance. In Roman law, at the end of the republican period, it was necessary to introduce new norms, since society came out of the patriarchal agnatic order. The problems that have arisen were solved by praetor fiction.
In accordance with it, if the praetor called for the succession of entities that were not heirs under civil law, and provided them with the opportunity to own the property of the deceased, they were recognized as full successors.
The main changes in the legal system were as follows.
The praetor found that if the property complex of the deceased was not accepted by the closest heir, the inheritance case should be opened in relation to the subject following him.
The praetor attached importance not only to agnatic, but also to cognitive kinship. For the purposes of inheritance, the existence of a kinship was established. The successors were all direct blood relatives of the deceased, regardless of gender. At the same time, a sequence of order and degrees of birth was observed. In addition, the institution of marriage received legal recognition.
Priority Law
As a result of changes in the rules, the sequence of inheritance became as follows:
- First of all, the children of the deceased, both relatives and adoptive children, as well as those who were adopted, were included if, at the time of death, they became free from the authority of the adoptive parent. The subjects released during the life of the father of the family from his power should have contributed their property in full to the hereditary mass. Together with other material values, it was distributed among the successors.
- The second priority was made by agnatic relatives. They inherited if none of the first group wanted to become a successor.
- The third stage included blood relatives to the 6th degree, inclusive. As an exception, successors of the 7th degree could inherit after previous queues. In this group, there was a succession of the mother after children and children after the mother.
- In the fourth place, the spouse who survived the deceased inherited (wife after husband, husband after wife).
The inheritance became “laying down” only if all the lines refused it or if there were no successors at all.
Justinian Law
It continued to develop the principles introduced by Praetor Roman law. In inheritance by law , agnatic kinship was gradually supplanted. He was replaced by cognitive kinship.
By the decisions of the Senate, the inheritance of children after mother and mother after children became a succession under the law. In addition, the rights of children after relatives by the mother were expanded.
Despite the gradual exclusion of agnatic kinship from the conditions of inheritance, the succession order was very confusing. Justinian decided to simplify this system. He finally established cognitive kinship as a principle of inheritance by law.
Successor ranks
According to the new order, all cognitive relatives, regardless of gender, could be called for inheritance by the degree of their proximity to the testator. As a result, four categories of successors were formed:
- The first included the closest descending relatives. These included children, grandchildren from deceased children, etc. All property was divided equally between them.
- In the second category, there were relatives on the ascending line, as well as full sisters / brothers. They also divide property equally, but the children of deceased siblings are entitled to the share that their deceased parent could receive. If the successors were only those with a kinship in an ascending line, then the property mass was divided in half between relatives on the paternal and maternal sides.
- Subjects of the third category were called for succession in the absence of the first two. It included half sisters / brothers, descending from the same father with the deceased, but from different mothers, or vice versa.
If there are no such groups, the inheritance passed to the fourth category — to late relatives in order of proximity of degrees of kinship without any restriction.