Inheritance

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From William Hogarth's A Rake's Progress. "The Young Heir Takes Possession Of The Miser's Effects". William Hogarth - A Rake's Progress - Plate 1 - The Young Heir Takes Possession Of The Miser's Effects.jpg
From William Hogarth's A Rake's Progress . "The Young Heir Takes Possession Of The Miser's Effects".

Inheritance is the practice of passing on private property, titles, debts, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time.

Contents

Terminology

In law, an heir is a person who is entitled to receive a share of the deceased's (the person who died) property, subject to the rules of inheritance in the jurisdiction of which the deceased was a citizen or where the deceased (decedent) died or owned property at the time of death.

The inheritance may be either under the terms of a will or by intestate laws if the deceased had no will. However, the will must comply with the laws of the jurisdiction at the time it was created or it will be declared invalid (for example, some states do not recognise holographic wills as valid, or only in specific circumstances) and the intestate laws then apply.

A person does not become an heir before the death of the deceased, since the exact identity of the persons entitled to inherit is determined only then. Members of ruling noble or royal houses who are expected to become heirs are called heirs apparent if first in line and incapable of being displaced from inheriting by another claim; otherwise, they are heirs presumptive. There is a further concept of joint inheritance, pending renunciation by all but one, which is called coparceny.

In modern law, the terms inheritance and heir refer exclusively to succession to property by descent from a deceased dying intestate. Takers in property succeeded to under a will are termed generally beneficiaries, and specifically devises for real property, sequesters for personal property (except money), or legatees for money.

Except in some jurisdictions where a person cannot be legally disinherited (such as the United States state of Louisiana, which allows disinheritance only under specifically enumerated circumstances), a person who would be an heir under intestate laws may be disinherited completely under the terms of a will (an example is that of the will of comedian Jerry Lewis; his will specifically disinherited his six children by his first wife, and their descendants, leaving his entire estate to his second wife).

History

Detailed anthropological and sociological studies have been made about customs of patrimonial inheritance, where only male children can inherit. Some cultures also employ matrilineal succession, where property can only pass along the female line, most commonly going to the sister's sons of the decedent; but also, in some societies, from the mother to her daughters. Some ancient societies and most modern states employ egalitarian inheritance, without discrimination based on gender and/or birth order.

Religious laws about inheritance

Jewish laws

The inheritance is patrimonial. The father —that is, the owner of the land— bequeaths only to his male descendants, so the Promised Land passes from one Jewish father to his sons.

If there were no living sons and no descendants of any previously living sons, daughters inherit. In Numbers 27:1-4, the daughters of Zelophehad (Mahlah, Noa, Hoglah, Milcah, and Tirzah) of the tribe of Manasseh come to Moses and ask for their father's inheritance, as they have no brothers. The order of inheritance is set out in Numbers 27:7-11: a man's sons inherit first, daughters if no sons, brothers if he has no children, and so on.

Later, in Numbers 36, some of the heads of the families of the tribe of Manasseh come to Moses and point out that, if a daughter inherits and then marries a man not from her paternal tribe, her land will pass from her birth-tribe's inheritance into her marriage-tribe's. So a further rule is laid down: if a daughter inherits land, she must marry someone within her father's tribe. (The daughters of Zelophehad marry the sons' of their father's brothers. There is no indication that this was not their choice.)

The tractate Baba Bathra, written during late Antiquity in Babylon, deals extensively with issues of property ownership and inheritance according to Jewish Law. Other works of Rabbinical Law, such as the Hilkhot naḥalot: mi-sefer Mishneh Torah leha-Rambam, [1] and the Sefer ha-yerushot: ʻim yeter ha-mikhtavim be-divre ha-halakhah be-ʻAravit uve-ʻIvrit uve-Aramit [2] also deal with inheritance issues. The first, often abbreviated to Mishneh Torah, was written by Maimonides and was very important in Jewish tradition.

All these sources agree that the firstborn son is entitled to a double portion of his father's estate: Deuteronomy 21:17. This means that, for example, if a father left five sons, the firstborn receives a third of the estate and each of the other four receives a sixth. If he left nine sons, the firstborn receives a fifth and each of the other eight receive a tenth. [1] [3] If the eldest surviving son is not the firstborn son, he is not entitled to the double portion.

Philo of Alexandria [4] and Josephus [5] also comment on the Jewish laws of inheritance, praising them above other law codes of their time. They also agreed that the firstborn son must receive a double portion of his father's estate.

Christian laws

At first, Christianity did not have its own inheritance traditions distinct from Judaism. With the accession of Emperor Constantine in 306, Christians both began to distance themselves from Judaism and to have influence on the law and practices of secular institutions. From the beginning, this included inheritance. The Roman practice of adoption was a specific target, because it was perceived to be in conflict with the Judeo-Christian doctrine of primogeniture. As Stephanie Coontz documents in Marriage, a History (Penguin, 2006), not only succession but the whole constellation of rights and practices that included marriage, adoption, legitimacy, consanguinity, and inheritance changed in Western Europe from a Greco-Roman model to a Judeo-Christian pattern, based on Biblical and traditional Judeo-Christian principles. The transformation was essentially complete in the Middle Ages, although in English-speaking countries there was additional development under the influence of Protestantism. Even when Europe became secularized and Christianity faded into the background, the legal foundation Christendom had laid remained. Only in the era of modern jurisprudence have there been significant changes.

Islamic laws

The Quran introduced a number of different rights and restrictions on matters of inheritance, including general improvements to the treatment of women and family life compared to the pre-Islamic societies that existed in the Arabian Peninsula at the time. [6] Furthermore, the Quran introduced additional heirs that were not entitled to inheritance in pre-Islamic times, mentioning nine relatives specifically of which six were female and three were male. However, the inheritance rights of women remained inferior to those of men because in Islam someone always has a responsibility of looking after a woman's expenses. According to the Quran, for example, a son is entitled to twice as much inheritance as a daughter.[Quran   4:11] [7] The Quran also presented efforts to fix the laws of inheritance, and thus forming a complete legal system. This development was in contrast to pre-Islamic societies where rules of inheritance varied considerably. [6] In addition to the above changes, the Quran imposed restrictions on testamentary powers of a Muslim in disposing his or her property. The Quran contains only three verses that give specific details of inheritance and shares, in addition to few other verses dealing with testamentary. [Quran   4:11,12,176] [8] But this information was used as a starting point by Muslim jurists who expounded the laws of inheritance even further using Hadith, as well as methods of juristic reasoning like Qiyas. Nowadays, inheritance is considered an integral part of Sharia law and its application for Muslims is mandatory, though many peoples (see Historical inheritance systems), despite being Muslim, have other inheritance customs.

Inequality

Inheritance by amount and distribution received and action taken with inheritances in Great Britain between 2008 and 2010 Inheritance by amount and distribution received and action taken with inheritances in Great Britain between 2008 and 2010.png
Inheritance by amount and distribution received and action taken with inheritances in Great Britain between 2008 and 2010

The distribution of the inherited wealth has varied greatly among different cultures and legal traditions. In nations using civil law, for example, the right of children to inherit wealth from parents in pre-defined ratios is enshrined in law, [9] as far back as the Code of Hammurabi (ca. 1750 BC). [10] In the US State of Louisiana, the only US state where the legal system is derived from the Napoleonic Code, this system is known as "forced heirship" which prohibits disinheritance of adult children except for a few narrowly-defined reasons that a parent is obligated to prove. [11] Other legal traditions, particularly in nations using common law, allow inheritances to be divided however one wishes, or to disinherit any child for any reason.

In cases of unequal inheritance, the majority might receive little while only a small number inherit a larger amount, with the lesser amount given to the daughter in the family.[ citation needed ] The amount of inheritance is often far less than the value of a business initially given to the son, especially when a son takes over a thriving multimillion-dollar business, yet the daughter is given the balance of the actual inheritance amounting to far less than the value of business that was initially given to the son. This is especially seen in old world cultures, but continues in many families to this day. [12]

Arguments for eliminating forced heirship include the right to property and the merit of individual allocation of capital over government wealth confiscation and redistribution, but this does not resolve what some[ who? ] describe as the problem of unequal inheritance. In terms of inheritance inequality, some economists and sociologists focus on the inter generational transmission of income or wealth which is said to have a direct impact on one's mobility (or immobility) and class position in society. Nations differ on the political structure and policy options that govern the transfer of wealth. [13]

According to the American federal government statistics compiled by Mark Zandi in 1985, the average US inheritance was $39,000. In subsequent years, the overall amount of total annual inheritance more than doubled, reaching nearly $200 billion. By 2050, there will be an estimated $25 trillion inheritance transmitted across generations. [14]

Some researchers have attributed this rise to the baby boomer generation. Historically, the baby boomers were the largest influx of children conceived after WW2. For this reason, Thomas Shapiro suggests that this generation "is in the midst of benefiting from the greatest inheritance of wealth in history". [15] Inherited wealth may help explain why many Americans who have become rich may have had a "substantial head start". [16] [17] In September 2012, according to the Institute for Policy Studies, "over 60 percent" of the Forbes richest 400 Americans "grew up in substantial privilege", and often (but not always) received substantial inheritances. [18] .

Other research has shown that many inheritances, large or small, are rapidly squandered. [19] Similarly, analysis shows that over two-thirds of high-wealth families lose their wealth within two generations, and almost 80% of high-wealth parents "feel the next generation is not financially responsible enough to handle inheritance". [20]

Social stratification

It has been argued that inheritance plays a significant effect on social stratification. Inheritance is an integral component of family, economic, and legal institutions, and a basic mechanism of class stratification. It also affects the distribution of wealth at the societal level. The total cumulative effect of inheritance on stratification outcomes takes three forms, according to scholars who have examined the subject.

The first form of inheritance is the inheritance of cultural capital (i.e. linguistic styles, higher status social circles, and aesthetic preferences). [21] The second form of inheritance is through familial interventions in the form of inter vivos transfers (i.e. gifts between the living), especially at crucial junctures in the life courses. Examples include during a child's milestone stages, such as going to college, getting married, getting a job, and purchasing a home. [21] The third form of inheritance is the transfers of bulk estates at the time of death of the testators, thus resulting in significant economic advantage accruing to children during their adult years. [22] The origin of the stability of inequalities is material (personal possessions one is able to obtain) and is also cultural, rooted either in varying child-rearing practices that are geared to socialization according to social class and economic position. Child-rearing practices among those who inherit wealth may center around favoring some groups at the expense of others at the bottom of the social hierarchy. [23]

Sociological and economic effects of inheritance inequality

It is further argued that the degree to which economic status and inheritance is transmitted across generations determines one's life chances in society. Although many have linked one's social origins and educational attainment to life chances and opportunities, education cannot serve as the most influential predictor of economic mobility. In fact, children of well-off parents generally receive better schooling and benefit from material, cultural, and genetic inheritances. [24] Likewise, schooling attainment is often persistent across generations and families with higher amounts of inheritance are able to acquire and transmit higher amounts of human capital. Lower amounts of human capital and inheritance can perpetuate inequality in the housing market and higher education. Research reveals that inheritance plays an important role in the accumulation of housing wealth. Those who receive an inheritance are more likely to own a home than those who do not regardless of the size of the inheritance. [25]

Often, racial or religious minorities and individuals from socially disadvantaged backgrounds receive less inheritance and wealth.[ citation needed ] As a result, mixed races might be excluded in inheritance privilege and are more likely to rent homes or live in poorer neighborhoods, as well as achieve lower educational attainment compared with whites in America. Individuals with a substantial amount of wealth and inheritance often intermarry with others of the same social class to protect their wealth and ensure the continuous transmission of inheritance across generations; thus perpetuating a cycle of privilege.

Nations with the highest income and wealth inequalities often have the highest rates of homicide and disease (such as obesity, diabetes, and hypertension) which results in high mortality rates. [26] A The New York Times article reveals that the U.S. is the world's wealthiest nation, but "ranks twenty-ninth in life expectancy, right behind Jordan and Bosnia" and "has the second highest mortality rate of the comparable OECD countries". [27] This has been regarded as highly attributed to the significant gap of inheritance inequality in the country, [28] although there are clearly other factors such as the affordability of healthcare.

When social and economic inequalities centered on inheritance are perpetuated by major social institutions such as family, education, religion, etc., these differing life opportunities are argued to be transmitted from each generation. As a result, this inequality is believed to become part of the overall social structure. [29]

Dynastic wealth

Dynastic wealth is monetary inheritance that is passed on to generations that didn't earn it. [30] Dynastic wealth is linked to the term Plutocracy. Much has been written about the rise and influence of dynastic wealth including the bestselling book Capital in the Twenty-First Century by the French economist Thomas Piketty. [31]

Bill Gates uses the term in his article "Why Inequality Matters". [32]

Taxation

Many states have inheritance taxes or death duties, under which a portion of any estate goes to the government.

See also

Related Research Articles

Will and testament Legal declaration by which a person names one or more persons to manage his or her estate and provides for the distribution of his property at death

A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.

Primogeniture ( ) is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relative. In most contexts it means the inheritance of the firstborn son ; it can also mean by the firstborn daughter.

Intestacy Condition of the estate of a person who dies without having made a valid will or other binding declaration

Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.

In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alienated by the tenant-in-possession, and instead causes it to pass automatically by operation of law to an heir determined by the settlement deed. The term fee tail is from Medieval Latin feodum talliatum, which means "cut(-short) fee" and is in contrast to "fee simple" where no such restriction exists and where the possessor has an absolute title in the property which he can bequeath or otherwise dispose of as he wishes. Equivalent legal concepts exist or formerly existed in many other European countries and elsewhere.

In Civil law and Roman law, the legitime, also known as a forced share or legal right share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause. The word comes from French héritier légitime, meaning "rightful heir."

An executor is someone who is responsible for executing, or following through on, an assigned task or duty. The feminine form, executrix, may sometimes be used.

Will contest

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.

Pretermitted heir

In the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.

In the common law of England, the doctrine of worthier title was a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. It essentially provides that a remainder cannot be created in the grantor's heirs, at least not by those words.

Slayer rule common law rule

The slayer rule, in the common law of inheritance, stops a person inheriting property from a person they murder. In figuring inheritance of the decedent's estate, the slayer is treated as though they had died before the person they murdered, hence the murderer's share of the estate would pass to their issue.

Forced heirship

Forced heirship is a form of testate partible inheritance whereby the estate of a deceased is separated into (1) an indefeasible portion, the forced estate, passing to the deceased's next-of-kin (conjunctissimi), and (2) a discretionary portion, or free estate, to be freely disposed of by will. Forced heirship is generally a feature of civil-law legal systems which do not recognize total freedom of testation. Normally, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator to be distributed by will on death to whomever he or she chooses. Takers in the forced estate are known as forced heirs.

Islamic inheritance jurisprudence Wikimedia list article

Islamic Inheritance jurisprudence is a field of Islamic jurisprudence that deals with inheritance, a topic that is prominently dealt with in the Qur'an. It is often called Mīrāth, and its branch of Islamic law is technically known as ʿilm al-farāʾiḍ.

Hindu Succession Act, 1956 Act of the Parliament of India

The Hindu Succession Act, 1956 is an Act of the Parliament of India enacted to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act lays down a uniform and comprehensive system of inheritance and succession into one Act. The Hindu woman's limited estate is abolished by the Act. Any property possessed by a Hindu female is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes. Parts of this Act was amended in 2005 by the Hindu Succession (Amendment) Act, 2005.

The estate tax in the United States is a tax on the transfer of the estate of a deceased person. The tax applies to property that is transferred via a will or according to state laws of intestacy. Other transfers that are subject to the tax can include those made through an intestate estate or trust, or the payment of certain life insurance benefits or financial account sums to beneficiaries. The estate tax is one part of the Unified Gift and Estate Tax system in the United States. The other part of the system, the gift tax, applies to transfers of property during a person's life.

Laughing heir

In the law of inheritance, a laughing heir is an heir who is legally entitled to inherit the property of a person who has died, even though that heir is only distantly related to the deceased, and therefore has no personal connection or reason to feel bereaved over the death.

The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.

Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another was an important case in South African customary law. The case was heard in the Constitutional Court on 2 and 3 March 2004, with judgment handed down on 15 October. Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J, and Yacoob J were the presiding judges. The court held that section 23 of the Black Administration Act, in applying the system of male primogeniture, was incompatible with sections 9 (equality) and 10 (dignity) of the Constitution.

Women in the Sasanian Empire

In the Sassanid Empire, the state religion Zoroastrianism created the policy that dictated relationships between men and women. Zoroastrianism set what roles women would have, the marriage practices, women's privileges in Sasanian society and influenced Islam when it arose. The moral standards, the structure of life, and the practices of the Sasanian society were found by looking at the religious writing and laws of the time. Women had legal rights, such as to real estate, but the privileges a woman had depended on what type of wife she was, as did the restriction that were placed on her.

Historical inheritance systems are different systems of inheritance among various people.

References

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