INTESTATE SUCCESSION

There were several stages in the development of the Roman law of intestate succession. However, the original ius civile rules, as contained in the Twelve Tables, were not wholly superseded until Justinian.

The ius civile rules

In the early law, contained in but probably pre-dating the Twelve Tables, potential heirs were put into different classes, which were arranged in priority. If there was a person entitled to be heir in one class, classes ranked lower were excluded.

The first class of potential heirs consisted of the persons known as sui heredes. The term sui heredes means “their own heirs” or “heirs to them­selves”, and were so called because the deceased’s property was seen in early law as being in a sense the family’s property, of which the paterfamilias merely had lifetime stewardship. In this sense, the sui heredes, therefore, were seen as having rights of a sort in the property, even before the death of the pater­familias. The sui heredes were those who became sui iuris on the death of a male deceased (see Chapter 3), in other words the children of the deceased, including adopted children, and also his widow if the marriage was cum manu. In the case of a predeceasing son, any child of that son also became sui iuris (children of daughters would become sui iuris only on the death of their father or his paterfamilias) and would represent his or her father in the division of the estate. Children born after the death of their father (nascituri) were treated for these purposes as if they had already been born. Sui heredes could not refuse to be heirs, even if the estate was insolvent, as they were necessarii heredes (see below).

Children who had been emancipated were not sui heredes, nor were wives in a marriage sine manu, and so such persons had no rights on intestacy.

If there were no sui heredes, the nearest agnatic relation (e.g a sibling) would be heir. The question of who was the nearest agnate was answered by counting back to the nearest common ancestor and then back down to the party claiming entitlement. Siblings are thus related in the second degree, uncle and nephew in the third degree and cousins in the fourth. Women were barred in the late Republic from succeeding as agnates, except for sisters of the deceased. The nearest agnate could refuse to be heir, in which case the estate passed to the deceased’s gens (clan), though this was super­seded by developments in the law by the classical period, and the nature of the right of the gens is obscure.

Praetorian developments

The praetors intervened extensively in the law of intestacy, which was often seen as neglecting the legitimate claims of more deserving relations. The praetors could not directly change the ius civile rules. However, they limited the practical scope of those rules by allowing non-heirs a new remedy, bonorum possessio (possession of property), authorising them to take possession of the estate. Bonorum possessio could be granted by the praetor either cum re or sine re. Where it was granted cum re, it was effective even against the ius civile heir. Where it was granted sine re, however, the ius civile heir could recover the property, although he would be subject to the burden of proving his entitlement. The grantee of bonorum possessio sine re was in a vulnerable position, although the possession thereby acquired would allow ownership to be obtained by usucapio (see Chapter 5).

In strict law, the grantee of bonorum possessio was not heir. As a result, at least originally, he could neither enforce any right held by the deceased nor could the deceased’s debts be enforced on him. However, by classical law such actions were allowed, on the fiction that this “praetorian heir” was the actual heir.

The developed praetorian law prioritised different classes of potential heir. The highest priority was given to children of the deceased, meaning not only any descendant becoming sui iuris, but also including emancipated children. However, where a child had been emancipated, it was necessary to collate any money or property received from the deceased on emancipation (collatio bonorum). The value of such money or property would be notion­ally added to the deceased’s estate for the purposes of calculating shares, and would then be deducted from the emancipated child’s share.

If the deceased died without issue, the estate would fall to those entitled to be heirs under the ius civile rules. This would primarily mean agnatic relations.

Failing the first two categories of potential heirs in the praetorian system, the nearest cognatic relation (limited to relationships in the sixth degree) would be entitled to be heir. If there were no such relations, a surviving spouse would be entitled to inherit.

Legislation

Further reforms were made by two senatusconsulta of the second century ad.

In the SC Tertullianum of around ad 130, the order of succession was changed where the deceased’s mother had had at least three children (four if she was a freedwoman). In such a case, the deceased’s issue had first priority. If there were no issue, the deceased’s father had priority, followed by any brothers of the whole blood. Failing these categories, the deceased’s sisters of the whole blood shared the estate with their mother.

In the SC Orphitianum of ad 178, the relationship of children to their mother was recognised, and they were given the primary right to succeed on her intestacy, whether they were legitimate or illegitimate.

Neither of these senatusconsulta changed the order of succession, except in the specific circumstances to which they applied.

Justinian's reforms

Justinian introduced a new scheme, based on relationships ofblood (cognatic relationships), without restriction to agnatic relationships.

Highest priority continued to be given to issue of the deceased. Failing this, the estate was divided between ascendants and siblings. If there was no one in that class, the nearest relation took the estate. If there were no relations, the deceased’s spouse took the estate.