Intestate succession

The Twelve Tables (5.4-5) laid down the order of intestate succession, which reflected the structure of early Roman society: “If someone dies intestate and without family heirs (heredes sui), the nearest agnate shall have the property.

Although the Twelve Tables did not expressly mention it, family heirs suc­ceeded in accordance with the principle of representation (in stirpes), which meant that the grandchildren represented the son when he was no longer alive or had lost the condition of family heir - for instance, in case the son had been emancipated by the deceased. Suppose that at the death of Titius, the following relatives were still alive: his brothers Tiberius and Sextus, his son Caius, his daughter Marca, and two sons of his deceased daughter Publia named Sempronius and Lucius. The heirs would be Caius, Marca, Sempronius and Lucius. Caius and Marca would take one-third each; and Sempronius and Lucius, one-sixth each.

If there were no family heirs, the inheritance fell to the nearest agnate in degree, to the exclusion of the other agnates. The nearest agnate was the closest collateral relative in the male line, i.e., from a common male ancestor (brothers, uncle, and nephew). Since women had no children under their power, and therefore no family heirs, the nearest agnate actually had the first claim in the case of female intestate succession. Illegitimate children had no agnatic relatives since they were not under the paternal power. The nearest agnate did not become heir automatically, but only after accepting the inheritance. Among agnates, the principle of representation did not apply, and agnates of the same degree took equal shares of the estate. In the case of the succession of a freedman without family heirs, the place of the agnate was taken by the patron (Gaius 3.40), because the freedman had no agnatic family.

Suppose that at the death of Titius, the following relatives were alive: his sister Publia, who was under marital power; two children of Publia under their father’s patria potestas; Caia, daughter of a deceased brother of Titius; Tiberius, son of another deceased brother; and Manius, a cousin of Titius. The heirs would be Caia and Tiberius, because they would be the nearest agnates (niece and nephew, respectively). However, the lex Voconia (169 bce) or its inter­preters seem to have limited the inheritance rights of female relatives, allowing only the sisters of the deceased to inherit. Thus, after the enactment of this statute, the only heir in our example would be Tiberius, the nephew of the deceased. Although the freedman could have children, he could have no other relatives and therefore had no agnatic family. Thus, in the absence of family heirs, the inheritance of the freedman fell to the patron and the patron’s agnatic descendants.

If there was neither a family heir (heres suus) nor an agnate, the Twelve Tables gave the estate to the family clan. We do not know exactly what that meant, but it probably implied that each member of the clan could take possession of the estate if no heir with a better claim had already done so.