Succession Law & The Fragility of Continuity

Succession law legislates at the threshold of absence. It speaks when the individual voice has fallen silent, arranging property, responsibility, and memory. Yet it is never only technical. To inherit is to negotiate with the past: to decide what is owed, to whom, and under which cultural and legal script.

Civil law traditions emphasise solidarity through compulsory shares; common law celebrates freedom through testamentary autonomy; Islamic systems proclaim immutable Qur’anic shares. But these categories conceal nuance. Civil law increasingly opens to autonomy; common law tempers freedom with duties of care; Islamic jurisdictions reveal pluralism in practice. Succession law emerges less as an architecture of absolutes than as a constellation of paradoxes.

Estate planning is where law meets imagination: wills, foundations, trusts, donations, and now digital vaults or ecological trusts. It is also where law collides with taxation, cultural heritage, and human rights. Each system enacts a philosophy of continuity, but never in pure form.

Seen through the Penteract model, succession law is mapped across multiple dimensions. Territorial jurisdiction (2D) defines belonging; patrimonial rules (3D) structure substance; cultural and linguistic nuance (4D) shapes interpretation; doctrinal foundations (5D) supply coherence; and corrective oversight (6D) intervenes when law falters. Succession, in this light, is not a linear code but a multidimensional negotiation between memory, patrimony, and justice.

Inheritance is law’s form of memory. It embodies solidarity and continuity, but also autonomy and conflict.

The Napoleonic tradition enshrined compulsory shares as legal expressions of family solidarity.^1 Belgium, France, Spain, and Italy codified the réserve héréditaire; Germany crafted the Pflichtteil as a monetary claim rather than co-ownership.^2 Switzerland’s 2023 reform reduced compulsory shares,^3 while Belgium’s 2018 reform cut the children’s reserve to half, abolished the parental reserve, and introduced enforceable succession agreements.^4

Even within civil law nuance persists. French doctrine elevates solidarity to a constitutional principle. Belgian reformers defended individual choice while retaining family balance. Spanish foral systems, such as Catalonia and Navarra, diverge from the national code.^5

Common law valorises testamentary freedom but not without limits. England and Wales empower courts under the Inheritance (Provision for Family and Dependants) Act 1975 to reintroduce solidarity into wills.^6 Similar provisions exist in Australia and New Zealand.^7 Scotland, though part of the UK, preserves civil law–like “legal rights” for heirs.^8

Latin America enforces the legítima as public order. Andrés Bello’s Chilean Civil Code (1855) inspired Colombia, Argentina, and Mexico.^9 Yet practice often bends rigidity through offshore structures, informal transfers, or strategic litigation.

Islamic systems prescribe Qur’anic shares as divine mandate.^10 Still, Morocco and Tunisia experiment with reforms on gender equality,^11 Indonesia allows adat customary law to coexist,^12 and Egypt debates constitutional reinterpretations.^13

Seen through the Penteract lens, these traditions map onto 3D substantive patrimonial law (the reserve, the will, the trust) but are constantly rebalanced by 6D corrective oversight (human rights review, constitutional equality). Inheritance is not uniform law but negotiated memory.

Succession law also structures time.

Compulsory shares anchor the present to the past: patrimony transmits because kinship cannot be severed. Trusts and foundations extend ownership forward, projecting continuity beyond death. Planning tools are temporal devices: they decide whether wealth binds backward, forward, or both.

Digital inheritance disrupts these timelines. Cryptographic assets, social media archives, and cloud storage elude traditional categories. France has legislated on digital succession rights,^14 while many states defer to contract and private service terms.

In the Penteract framework, this temporal layering belongs to the 4D cultural-linguistic dimension, since the very semantics of property shift when memory becomes digital. The law of succession no longer follows a linear chronology; it oscillates between tangible estates and intangible futures.

Which law speaks for the dead?

The EU Succession Regulation (650/2012) anchors jurisdiction in habitual residence (Art 4) and applicable law likewise (Art 21).^15 A professio juris permits choice of nationality law (Art 22).^16 The CJEU in Kubicka and Oberle stressed predictability but exposed tension: residence as lived fact, nationality as identity.^17

Common law retains domicile as the connector, though notoriously complex.^18 Civil law once distinguished between movables (domicile) and immovables (lex situs).^19 Nationality-based systems, such as Germany and Switzerland, have shifted under EU influence.^20

Pluralist jurisdictions multiply this complexity. India applies Hindu, Muslim, Christian, and Parsi laws in parallel;^21 Nigeria overlays customary, Islamic, and statutory rules;^22 South Africa blends Roman-Dutch heritage with constitutional scrutiny.^23

Here the Penteract’s 2D territorial dimension collides with 4D cultural and linguistic nuance. Belonging is never singular: it is a layered identity of residence, nationality, faith, and community.

Recognition of foreign wills and judgments is not only technical; it is a gesture of legal hospitality.

The Succession Regulation ensures recognition of decisions, authentic instruments, and settlements (Arts 39–44), and introduced the European Certificate of Succession (Arts 62–73).^24 The CJEU affirmed mutual trust as cornerstone in Gazprom.^25

Beyond Europe, the 1961 Hague Convention harmonises formal validity of wills; the 1985 Trusts Convention enables recognition of trusts; the 2019 Judgments Convention sketches global standards.^26

Practice diverges elsewhere: the United States relies on comity and ancillary probate,^27 Latin America on exequatur;^28 Islamic jurisdictions may reject recognition if outcomes contradict Qur’anic shares;^29 microstates such as Andorra, Monaco, and Liechtenstein adopt pragmatic solutions.^30

This illustrates how recognition operates at the crossroad of 2D territory and 5D doctrine, moderated by 6D corrective oversight. Hospitality is conditional, but essential to continuity across borders.

Estate planning is law’s architecture of continuity.

Civil law permits planning within forced heirship limits: testamentary freedom is bounded, yet matrimonial agreements, donations, and family foundations expand the field.^31 Belgian reforms introduced binding succession agreements to reflect modern family realities.^32

Common law trusts permit property to outlive its owner, though their recognition abroad remains uneven, particularly in civil law jurisdictions.^33

Latin America enforces claw-back to protect heirs, but planning adapts via corporate vehicles and donations. Islamic law limits wills to one-third of the estate,^34 yet waqf foundations and inter vivos donations create functional strategies.

Modern practice adds philanthropy, ecological trusts, digital vaults, and family offices. Here, 3D substantive patrimonial law intersects with 4D cultural nuance (ecological, philanthropic, digital). Planning is never mere patrimony: it is identity, culture, and foresight.

Inheritance taxation reflects each society’s philosophy of equality and solidarity.

In Belgium, competence is regional.

• Flanders grants a full exemption (0%) for family businesses and shares in family companies, provided continuity and employment conditions are respected.^35
   
• Wallonia and Brussels abolished such exemptions: they now apply reduced preferential rates (3% for heirs in direct line and partners, 7% for others), subject to continuity requirements.^36
   

France imposes progressive rates, but with mechanisms such as dation en paiement, allowing heirs to pay with works of art.^37 Spain is fragmented: Madrid applies almost symbolic rates, while Catalonia maintains significant taxation.^38 Germany privileges enterprises through conditional exemptions,^39 while Switzerland leaves competence to the cantons, some of which exempt descendants entirely.^40

The United Kingdom levies inheritance tax at 40% above a nil-rate band, with exemptions for spouses and charities.^41 The United States combines a federal estate tax with state-level duties.^42 Japan imposes some of the world’s highest rates,^43 while China and India impose none.

Double taxation remains acute. Only a handful of bilateral treaties exist — e.g. France–US,^44 Belgium–France,^45 UK–Ireland,^46 US–Germany,^47 Switzerland–UK^48 — and the CJEU has condemned discriminatory practices in Mattner^49 and Commission v Spain.^50 OECD model clauses exist, but implementation remains limited.^51

In the Penteract perspective, inheritance taxation embodies the friction between 2D territorial sovereignty and 3D patrimonial substance, with 6D corrective oversight ensuring that fiscal burdens respect equality and proportionality.

Succession law once entrenched exclusion. Illegitimate children, daughters, and minorities were denied inheritance rights. Gradual reform and judicial intervention reversed this.

The ECHR condemned discrimination in Marckx v Belgium,^51 Mazurek v France,^52 Fabris v France,^53 and Pla & Puncernau v Andorra.^54 National reforms followed: Belgium equalised heirs,^55 Spain abolished distinctions,^56 South Africa extended equality in customary law,^57 India reformed Hindu succession in 2005,^58 Colombia recognised indigenous rights.^59

Equality thus belongs to the 6D corrective dimension of the Penteract: it is law’s safety valve, ensuring that continuity is not privilege but dignity.

Succession law now confronts new frontiers.

• Digital inheritance: crypto-assets, NFTs, and online accounts challenge traditional categories. France and Germany legislate access rights; most states leave it to contract law.^60
   
• Cultural heritage: Belgium’s Topstukkendecreet,^61 France’s pre-emption rights,^62 Spain’s export restrictions^63 link inheritance to collective identity.
   
• Ecological succession: forests, carbon rights, ecological trusts emerge in common law.
   
• Family businesses: preferential regimes protect economic continuity in Belgium, Germany, and France.
   
• Philanthropy and migration: testamentary giving sustains universities, museums, NGOs; expat successions multiply cross-border disputes.
   

These horizons illustrate how succession law expands beyond patrimony into culture, environment, and digital life. In Penteract terms, the future of succession unfolds at once in 3D substance, 4D cultural language, and 6D correction, demanding a model that captures complexity.

Inheritance is never absolute. It oscillates between solidarity and autonomy, memory and transformation, privilege and equality. Law does not dissolve these paradoxes; it preserves them, offering frameworks through which families and societies negotiate meaning.

To inherit is therefore to interpret: to decide, in each case, what continuity should look like.

Here the Penteract model functions as compass. By aligning territorial, substantive, cultural, doctrinal, and corrective dimensions, it ensures that succession is not left to accident or fragmentation. Continuity becomes architecture, orientation, and responsibility.

Peeters Law positions itself precisely here: not as arbiter of certainty, but as navigator of complexity, guiding inheritance beyond property division toward a structured interpretation of memory, culture, and future.

For full bibliographical references to the cited works, please contact Peeters Law.