In Canada, succession rights are often discussed in the framework of testamentary freedom – see for example our previous blog regarding testamentary freedom which discusses disinheriting a beneficiary such as a child who might expect to inherit. But in many parts of the world, a person not only cannot disinherit certain family members, it would not be accepted by society at large in such places that a person should be able to do so.
These countries have “forced heirship” laws or mandatory succession rights, which direct how a person’s estate must be distributed on death, including who will inherit and what portions of the estate each beneficiary should receive. Beneficiaries included are typically close family members, but some jurisdictions include extended family members. These laws are found in many if not most civil law jurisdictions such as mainland Europe as well as Muslim countries.
Muslim countries follow sharia law, although the rights vary from country to country, and typically provide for a complex scheme of distribution, often with male heirs taking greater portions than female heirs and with spouses being provided for through dowry or other means. European civil law jurisdictions usually include spouses, children and remoter issue, although parents and other more extended family may also be included. The mandated distribution provisions apply whether or not a person makes a will, and in many jurisdictions will override gifts made during the person’s lifetime as well. For example, in France an individual with one child must leave one-half of their estate to that child, with an increasing percentage mandated if the individual has more than one child, and if they die without spouse or children, their parents will each be entitled to one-quarter of the estate, while a spouse is entitled to one-quarter of the estate or a life interest in the deceased spouse’s property.
From a Canadian legal and societal perspective, mandatory inheritance schemes are often seen as too restrictive. Being unable to leave a large portion of one’s estate to charity or all of one’s estate to a spouse when one also has children, for example, does not conform to our expectations. Interestingly, the term “forced heirship” derives from Louisiana law, where despite the inclusion of a mandatory inheritance scheme the law itself uses this term with its negative connotations. Concepts of fairness and reasonableness are culturally derived, and for those raised in a society where freedom is a paramount value, laws curtailing one’s testamentary freedom are often seen as unacceptable.
Even though Canadian and European inheritance laws seem to be based on opposing basic values, not everything in these laws is entirely different. In Ontario for example, we have laws designed to ensure that spouses have certain protections not only upon divorce but as well after the death of the other spouse. Likewise, minor children and other dependents are protected from being left without support. Such laws act to curtail testamentary freedom, but few in our society would question their general fairness and reasonableness.
Not all mandatory inheritance schemes direct where a person’s entire estate will go. Many countries with forced heirship laws include the freedom to leave a certain portion of the estate as a person wishes. Further, many mandatory succession jurisdictions are relaxing some aspects of their laws, either by allowing a larger portion of the estate to be left as a person wishes or by disentitling more remote family members (such as parents) from receiving a required portion.
One topic of frequent debate these days in our country revolves around whether Canada is moving to a more protective or “nanny” state, and, depending on your point of view, whether our society is more fair and equal as a result. Concepts of fairness and reasonableness not only arise from larger societal values but evolve as society evolves.
While individualistic values are slowly penetrating and changing cultural ideals in other parts of the world, our society has seen the drawbacks of allowing too much individual freedom, and has put in place measures to curtail extreme individualism, perhaps recognizing that some forms of individual freedom can impinge on other’s rights.
Social values change slowly, but they are changing as our society evolves and becomes more multicultural. As different cultures interact and converge to some degree, the debate about freedom versus protection, and testamentary freedom versus mandatory succession, will no doubt continue to evolve.
The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. In particular, they are not intended to provide U.S. legal or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.