Comparative Analysis of the Concept of Inheritance by Right of Representation in Russia and France

Abstract

This paper examines the concept of inheritance by right of representation which applies in intestate succession. Analysis of this concept is based on civil law in Russia and France. This paper contains the analysis of the history of the development of the inheritance by right of representation in Russia and France from the beginning of the 19th century to the present time; the legal nature of the analyzed concept is explored; the latest changes in the civil legislation of both states concerning the analyzed concept are considered. It has been found that the term “inheritance by right of representation” applied in the current Russian and French legislation has conditional nature as it does not reflect the general theory which implies the transfer of the deceased represented heir’s image to the living representing heir. The analysis of the provisions of the Civil Codes both of Russia and France shows that the legal succession between the represented heir and the representing heir does not occur: the representing heirs exercise their own rights but not the rights of the represented heirs. In fact, inheritance by right of representation in Russia and France should be understood as a generational order of intestate succession by descendants of a more distant degree of kinship towards the ancestor, who take the vacant place of the heir of a closer degree of kinship and divide equally the share that would be due to their father or mother. The study of recent changes in the French Civil Code allows to make an inference that some tendencies in the development of inheritance by right of representation in the inheritance law of France may be perceived by Russian legislators. Firstly, inheritance by law of representation should be permitted in a case when the represented heir is an unworthy heir as its personality must not affect the rights of the representing heir. Secondly, an heir should be granted the right to disclaim an inheritance in favor of potential heirs by right of representation, who was not called upon to inherit by right of representation. Thirdly, both the Russian and French Civil Codes’ provisions about commorients must be amended.