On the Necessity to Respect the Special Family-Law Position of the Spouse in the Provisions Relating to Statutory Inheritance (Against the Backgrounds of the German, Austrian, and Swiss Laws)

Abstract

Under the Family and Guardianship Code, the highest position in the family hierarchy is taken by the spouse. However, de lege lata this high position does not find sufficient reflection in the provisions of the Civil Code relating to statutory inheritance. The analysis of the regulations of the German, Austrian, and Swiss laws justifies the demand to strengthen the inheritance position of the spouse under the Polish law. De lege ferenda the spouse, inheriting concurrently with the descendants, should obtain a permanent share at the amount of ½ of the estate, and concurrently with the parents (one of the parents) always ¾ of the estate. In turn, the inheritance of siblings should be limited only to the situation in which there are, both, no parents and no spouse of the testator. In consequence, the present concurrence of inheriting of the spouse with the siblings would not take place. The effect of introducing of the demands suggested in the present paper would be strengthening of the position of the spouse also on the ground of the provisions relating to legitim (Art. 991 of the Civil Code).