A critical view on the forced heirship system in the Spanish Civil Code

Abstract

Despite the forced portion is one of the most emblematic and transcendental institutions of our inheritance system, throughout history it has been periodically questioned. After many centuries of testamentary freedom rule in Rome, the forced portion was founded on the officium pietatis’ transition from the moral to the legal sphere in a late period of Roman Law. Since then, it has accompanied us until its crystallization in our Civil Code, albeit with a clearly more restrictive complexion of the testamentary freedom than the tradition received from Roman sources. Although the discussion regarding the forced heirship’s suitability and the testamentary freedom’s convenience is really old, it has been cyclically and unsuccessfully repeated in relation to our Code. In fact, the controversy has never ceased. However, the colossal and irreversible socioeconomic transformations experienced in recent decades have led to renewed burgeoning debate on this subject: does the ancient forced portion still make sense in the 21st century as developed in our Civil Code? In this article we pay special attention to the aforementioned transformations and present some untenable situations often caused in family successions by the current legislation. In short, the time has arrived to undertake a deep review of the forced heirship system in our Civil Code, and this is a task that cannot afford further procrastination.