their part of the inheritance while its siblings’ share would unexpectedly be increased (‘windfall’). By establishing a regime of succession per stirpes the law thus attempts to isolate the inheritance rights of one branch of the family from the vagaries of fate striking another branch.71 Third, leaving aside several variations in detail, in the legal systems of the Western world the intestate succession rights of the deceased’s relatives are determined by the parentelic system, the three-line system, or by what may be referred to as the French system.72 The surviving spouse, however, does not fit into any of these systems. For while she is not normally related to the deceased by blood, she is still an integral part of his family, and cannot simply be passed over by the intestate succession regime. A legislator thus has to balance her position against that of the deceased’s (blood) relatives. Looking at the solutions adopted over the centuries, we find the remarkable rise of the surviving spouse.73 Roman law, as reshaped by Justinian, only took account of the surviving spouse in exceptional situations;74 mediaeval customary law often left her out altogether because it relied on the dissolution of the community of property that had to be effected after the first spouse’s death. Christian doctrine, however, and subsequently also the authors of secular natural law, emphasized the close connection between the spouses. This connection ultimately came to be reflected in the intestate succession rules. The German-language codifications of the late eighteenth century on marked the first steps in this direction.75 Other legal systems, particularly French law, were more conservative, at first, but got caught up in a reformist spirit.76 The originally more progressive codifications were also 71 Jan Peter Schmidt, ‘Intestate Succession in Latin America’, in Reid et al. 2007, 118–58 at 128–30. Schmidt uses the word ‘immunize’ in this context. 72 For details, see Reid et al. 2007, 458–61. 73 For a detailed discussion, see Reinhard Zimmermann, ‘Das Ehegattenerbrecht in historisch-vergleichender Perspektive’, Rabels Zeitschrift für ausländisches und internationales Privatrecht 80 (2016), 39–92. 74 On the ‘quarter of the poor widow’ (Novel 53, 6; Novel 117, 5), see Windscheid & Kipp 1906, § 574, 1. 75 See, for example, §§ 623–627II 1 PrALR; §§ 757–759ABGB(1811), §§ 2049–2053 Saxon BGB; § 1931 BGB (1900), Art. 462 Swiss ZGB(1907/1912). 76 Code civil Art. 767–770 (1804). part v • comparative legal history • reinhard zimmermann 250
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