On Disclamation Of Inheritance And Interests Of Successor’s Spouse

As provided in Article25of the Law of Succession, after the opening ofsuccession, a successor who disclaims inheritance should make known his decisionbefore the disposition of the estate. While according to Article17and Article18ofMarriage Law, any property inherited during the existence of marriage shall be jointlyowned by husband and wife with the exception of the property to be possessed byeither party as determined by will, and both husband and wife shall have equal rightsin the disposal of jointly owned property. Thus, a question arises in theory andpractice that, if the decedent’s property hasn’t been determined by any will to bepossessed by either husband and wife as the heir, whether the successor has the rightto disclaim inheritance without his/her spouse’s consent. In the beginning of thisarticle, two typical cases are brought up to introduce the contrary points of view injudicial practice. The author agrees that the successor has the right to determinewhether to accept or disclaim the inheritance which shall not be interfered by his/herspouse.To shed light on the problem discussed, the article firstly looks into several coreissues involving the disclamation of inheritance, including the history and legislativepurpose, the features and object of the act of disclaiming inheritance and an issue indispute that whether the creditor of the successor has the right to rescind the aforesaidact. The author holds that: the disclamation of inheritance plays a complementary roleto natural succession and aims at balancing the successor’s liberty of inheritancedisclaiming and the interests of creditors of the heritage; the successor is entitled toaccept or disclaim inheritance all by his/her own consideration; the successor’s creditor can’t rescind the disclamation despite its nature as property act; the object ofdisclamation is the right to inheritance; the ownership of the decedent’s estatetransfers the moment succession opens while the successor hasn’t become theeventual owner of the estate until a decision to accept inheritance is made known.Basing on the analysis above of disclamation of inheritance, the article thenbrings up more arguments for the author’s point of view from the aspect of thelegitimate interests of the heir’s spouse. Firstly, a more reasonable interpretation of therelated provisions comes to the conclusion that the heir’s spouse hasn’t become theco-owner of the heir’s portion of the estate before an indication of acceptance ordisclamation is made known, thus the spouse can’t interfere in the heir’s disclamation.Secondly, the article focuses on the liberty and limit of the heir’s right to disclaiminheritance, the legal status of the heir’s spouse in succession and re-succession.Lastly, whether the heir’s disclamation infringes the spouse other legitimate interestsis discussed through illuminating the proper interpretation of Article46of theInterpretation of Succession Law and the consortium of the spouse.In form, there’s no conflict between the provisions of Succession Law andMarriage Law since the heir’s spouse simply co-own the property the heir haseventually possessed by inheritance. In essence, however, conflict in legislativepurposes arises because that the heir’s liberty to disclaim inheritance makes thespouse’s right to co-own the property inherited as regulated in Marriage Law a merescrap of paper. It’s the conflict which radically causes the aforesaid controversy injudicial practice. To solve the problem, the amendment and development of the twosystems are indispensable. The article focuses on the lack of rationality regarding theestate inherited as jointly owned property of husband and wife. And the deficienciesin the disclamation of inheritance system and other involved systems are also pointedout, expecting to solve the disputes in practice by development in legislation.