Grundentscheidungen im Recht der Erbfolge des BGB

This article addresses three fundamental questions faced by the draftsmen of the German
Civil Code (as much as by any legislator in the Western world): What are the most
suitable rules on intestate succession? To what extent do the deceased's closest family
members have to be protected if the deceased has disinherited them? And how is the
allocation of the estate to those designated by a disposition mortis causa or by the
rules on intestate succession, and to the deceased's creditors, to be implemented? The
answers provided in the BGB to all three of these questions are highly questionable,
from a policy point of view as well as from a historical and comparative perspective.
Thus, the unlimited family succession underlying the intestate succession rules needs
to be drastically curtailed. The mandatory family protection of the deceased's closest
relatives has to be organized around the concept of maintenance rather than a »compulsory
portion«. And the position of the »heir« is to be reconceptualized, shifting from heres
absolutus to heres fiduciarius. In these respects, as in others, the German law of succession
lags behind developments abroad. A general reform, as has been implemented in
many European states over the past 25 years, thus appears to be required.