Trying to Square the Circle: Comparative Remarks on the Rights of the Surviving Spouse on Intestacy

Pages123-131
DOI10.3366/elr.2020.0609
Date01 January 2020
Author
Publication Date01 January 2020
GENERAL OVERVIEW

Of the many aspects of intestate succession, the position of the surviving spouse1 vis-à-vis the deceased's children is arguably not only the most practically relevant, but also the most difficult to decide upon for a legal order.2 Current Scottish law is characterised by a very favourable treatment of widows and widowers who, thanks to their generous “prior rights”, often take the entire estate of the deceased. Judging, moreover, from the different reports and consultation papers,3 there appears to be consensus that, even though the rights of children might need to be strengthened in a future reform, the spouse should continue to take the largest share.

In general terms, the Scottish position is fully in line with the global trend, which for the last two centuries has been marked by a constant improvement of the intestate succession rights of surviving spouses at the expense of the deceased's blood relatives.4 At the heart of this development has been the conviction that the surviving spouse should not merely be protected against destitution, but be able to continue living in the same house and with the same degree of comfort as before. This approach not only marked a turn away from the traditional “dynastic” model of intestate succession that was built on the desire to keep the assets within the blood family; it was also a reaction to the steep increase in life expectancy. For the death of the first spouse will now often occur at a moment when the other is living on a pension (and is possibly faced with costly bills for care or medical treatment), whereas the children are typically middle-aged and fully set up in life.5

If contemporary jurisdictions thus largely agree on the purposes and justifications of spouses’ intestacy rights, they show remarkable differences as regards implementation. In terms of substance, two general approaches can be distinguished. Under the first, the estate is given to the spouse in its entirety, at least when it is of small or medium size (as is the typical case of intestacy),6 with the children only benefitting, if at all, on the death of the second spouse. This solution is favoured in Scotland and most Common Law jurisdictions, while on the European Continent it is only found in exceptional cases (examples being Dutch and Swedish law). The second approach, which is predominant in Civilian regimes, is more nuanced. The spouse receives only a fraction of the estate, thus inheriting alongside children, but he or she enjoys further benefits under matrimonial property law. In addition, many Civilian jurisdictions grant surviving spouses the right to remain in the family home.

At first sight, the treatment of the surviving spouse under intestacy is a direct consequence of the chosen legislative technique. As Kenneth Reid shows in his paper, jurisdictions such as Scotland and England adopt a slab system, which means that they grant the spouse a minimum participation in the estate in the form of “prior rights” or a “statutory legacy”. Civilian regimes, by contrast, opt for a fractional system, which means that the entire estate is divided into shares.7 And yet there is no necessary connection between substance and form. Just as a slab system can be combined with a modest threshold sum (as is perfectly illustrated by former Scottish and English law), in a fractional system the share of the spouse can be set at 100% (as is illustrated by Dutch law). As a result, a lawmaker needs carefully to distinguish both dimensions. Arguably, the substantive question (how much should the spouse get?) should be decided before the technical question (should the spouse's entitlement take the form of prior rights or a share in the estate?).

The following analysis focuses on the substantive dimension. It shows that although the “spouse-takes-all” approach currently in place in Scotland works well in ordinary cases, it can lead to highly problematic results in others. The approach prevailing in Civilian regimes avoids these pitfalls, but only at the price of additional complexity.

THE “SPOUSE-TAKES-ALL” APPROACH

The decision to give the entire estate to the surviving spouse rests on a sound foundation. To the considerations mentioned above one can add that the transfer of wealth between the spouses will normally be just “a temporary and transitional stage”, as it is expected that the property will in due course flow down to the children.8 In Germany, spouses frequently opt for such a postponement of the childrens’ inheritance in their joint and mutual wills,9 and...

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