Researches On Spouse Forced Heirship

Compared with other blood inheritors of the deceased, spouse has some particularity toget the right of inheritance. Meanwhile, the intimacy between spouse and the deceased ismuch closer than that between other blood inheritors and the deceased on life, feelings andproperty, so to reinforce of the protection of the right of the inheritance of the survival spouseis a trend of legislation. Although according to the “Marriage Law of PRC”, the order ofsuccession and the share of estate for the spouse is not less favorable than other legalinheritors, the stipulation of the spouse’ right is only limited to this. However, the protectionof the spouse’ right can’t be only limited to this. Combining China’s national conditions withthe law-making stipulation of other countries and territories, it is quite necessary to do asystematic research on spouse’s right of succession and enhance the protection of spouse’right of succession when taking domestic scholars’ legislative proposal as use for reference.The body of the thesis can be divided into four parts, which is developed from thegeneral overview of the spouse’s forced heirship to the specific advice on how to better thespouse’s right of succession in PRC. On the one hand, the writer tries to emphasize that theprotection of the survival spouse’ right of succession should be enhanced by legislativeproposal, which is illustrated on the basis of the current situation of legislation of othercountries and territories as well as the legislative proposal of the domestic scholars. On theother hand, the writer also points out although the protection of the spouse’ right of successionshould be enhanced, under some special circumstance, it should be restricted to some extent.Part I is a general overview of the spouse’s forced heirship, including the historicaldevelopment, basis theory and the basic components of the spouse’ right of inheritance.Among them, the main points are the legal order of succession and the legal successionalportion, and spouse’ preempting right and the usufructuary right of the house and therestriction rule on it are not included in the basic components of the spouse’ right ofsuccession, due to the fact that the later two rules are not stipulated by most of the countries.Part II does a systematic research on the current situation of legislation of spouse’ rightof succession in many other countries and territories, and also makes an analysis based on it.The current situation of legislation is mainly illustrated from three aspects, that is, thespouse’ legal order of succession, legal successional portion, and the spouse’ preempting right as well as usufructuary right of the house. As a precondition, the writer has made a detailanalysis of the stipulation of the spouse’ right of inheritance in other countries and territories,looking forward to laying a basis for the bettering of proposal later.Part III is an illustration of the current situation of legislation of spouse’ right ofinheritance at home, and its shortcomings as well as the domestic scholars’ legislativeproposal. It points out that after investigating the Chinese people’s successional habit, thereare mainly four shortcomings, which include fixed order of statutory succession, little legalsuccessional portion, non-specified preempting right for spouse to use the house and dailyliving equipment, unspecific stipulation on the restriction of spouse’ right of inheritance.Meanwhile, this part also illustrates and analyses the related contents of the legislativeproposals from five scholars at home.Part IV illustrates the advice on bettering the spouse’ forced heirship in PRC. It putsforward that the legislative concept of the spouse’ forced heirship is equity principle, that is tosay, spouse’ right and obligation should be compatible, and then, on the guidance of thislegislative concept, it puts forward four advices to better the system. On the order ofsuccession, it stipulates that spouse is an unfixed inheritor; on the successional portion, thesuccessional portion for spouse should be properly increased; on the housing, spouse shouldhave the preempting right on the marital housing and daily living equipment; Meanwhile,considering some special circumstances, it suggests that the restriction rules on spouse’ rightof inheritance should be added.