Intestate Succession
Roman law knew three main systems of intestate succession: the old civil law system which, subject to some modifications, remained formally in force until the age of Justinian; the praetorian system, which was superimposed upon it; and finally the entirely novel system with which Justinian replaced both, and which was to supply the basis of much of the modern law of succession in civil law systems.
The Law of the Twelve Tables established the first order of succession on intestacy.
For the freeborn, the sui heredes, that is those who fell under the potestas of the deceased and who became sui iuris on his death, came first.[427] The sui heredes had to inherit whether they wanted to or not and were, therefore, referred to as heredes sui et necessarii. If there were no sui heredes, the estate was transferred to the nearest agnatic relatives (proximi agnati), i.e. those related to the deceased through males.[428] Otherwise than in the case of the sui heredes, the proximi agnati could lawfully refuse to accept the succession (hence they were described as heredes voluntarii). If there were no proximi agnati the estate devolved on the gentiles, members of the clan of the deceased. It should be noted that the identification of the nearest agnate was made very narrowly, so that if he died or declined the inheritance the estate did not go to the next nearest agnate but to the gentiles.As Roman society evolved, the system of intestate succession elaborated by the Law of the Twelve Tables proved inadequate in several respects. Thus, by way of a series of edicts the praetor gradually developed a new system of intestate succession, which gave rights first to the descendants of the deceased (including emancipated children and children given in adoption); next to the legitimi, i.e.
those persons that could inherit in accordance with the Law of the Twelve Tables (sui heredes, proximi agnati, gentiles); then to blood relatives up to the sixth degree (proximi cognati)[429]; and finally to the husband or wife.Although the praetorian intestate succession was initially retained by the drafters of the Justinianic codification, Justinian in the late stages of his reign introduced a completely new system by means of two important enactments (Novellae 118 and 127). Under the new system, the descendants (descendentes) of the deceased were the first to succeed, regardless of whether they were related through the male or female line. Failing the descendants, the estate devolved on the ascendants (adscendentes) and the brothers and sisters of the deceased. If there were no members of the second group, the nearest other collaterals inherited per capita. Finally, although it was not expressly stated, it would appear that if there were no blood relatives at all the surviving spouse could succeed as a last resort. If the deceased left no intestate heirs, the estate went to the imperial treasury (fiscus).
3.5.2
More on the topic Intestate Succession:
- Praetorian Intestate Succession
- Intestate Succession in Justinian's Law
- Intestate succession
- Praetorian intestate succession
- 3. INTESTATE SUCCESSION
- Intestate Succession Under the Law of the Twelve Tables
- Intestate Succession
- The rules of intestate succession came into operation when a person failed to create a valid will or when the will he composed was later declared legally invalid.
- As previously noted, the Romans considered the law of succession to be part of the law of things, since succession was construed as a mode of acquisition of rights over things in a mass (per universitatem).
- Types of succession
- Universal succession and hereditas
- 4. TESTAMENTARY SUCCESSION
- Testamentary Succession