The Function and Criteria of Intergenerational Inheritance Law. 01/10/2016 - 30/09/2020

Abstract

Belgian intergenerational intestate inheritance law is parentage-based. The sole criterion for intestate inheritance rights is legal parentage. However, parentage neglects different family situations. Today the societal understanding of family relations is no longer limited to legal parentage relations. There has been an evolution to families of choice (e.g. blended families, homo-sexual couple with children). Despite this evolution, children who are only biologically or socially related to the deceased, do not inherit because of the requirement of legal parentage. Furthermore, because legal parentage is sufficient to inherit -neither financial need nor any criteria other (such as a good relationship) is required-, situations of financial need of heirs and the quality of the relationship are not taken into account for the entitlement to intestate inheritance rights. Yet, the jurisprudence of the European Court of Human Rights and the Belgian Constitutional Court do take into account a broader variation of family situations and have evolved to a less parentage-based approach. This tendency should also be noted in foreign legal systems, such as the Netherlands where it is possible for stepchildren to inherit equally to legal children. Also in other domains of Belgian law, legal parentage is not an exclusive criterion to give entitlement to certain rights. For example, in maintenance law children who are only biologically related to the deceased can claim maintenance from the estate of their biological parent, if they are in financial need. These evolving societal and legal perspectives give rise to questions about the contemporary function and criteria of intergenerational inheritance rights. Thus, this research will verify whether legal parentage is necessary to inherit intestate, and whether it is sufficient to inherit. To answer this question the function of intergenerational inheritance law in the society will be determined.

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  • Research Project