The System Innovation Of Inheritance Scope Of Spouse

The existing law aboutthe scope of inheritance for spouse did not do any restrictions,so the scope of inheritance for spouse is the personal legal property,actually if there's no special agreement on matrimonial regime,the spouse will get two parts property.One is based on the relationship and the spouse will gain half of the common property of husband and wife,the other part is based on the first line of the legal heir and the spouse will gain the share of the heritage.Based on the existing law about matrimonial regime and legal succession of spouses,the author conducts the positive survey and normative analysis.The analysis discovery that the sample cases exist the contradictions found.In addition,the sample cases exist a big probability events of the contradictions between the spouse and the dead children on the inheritance and the legacy of giving and receiving.Combined with the life,on the existing law has some disadvantages.One is the loss of the property,secondly,it is to the disadvantage of protecting private rights.Besides,it can not balance of interest.Finally,it doesn't adapt the social security system.On the basis of empirical investigation and reflection,this paper sorts out the concept,inheritance system and legislative value choice of related spouses in China and abroad,draws lessons from the part that is suitable for China's national conditions,and puts forward the view of limiting the scope of inheritance of spouses.Specifically,the scope of inheritance of spouse can be divided into the scope of inheritance that can be directly inherited and the scope of inheritance that cannot be directly inherited.Spouse may not directly inherit refers to the spouse can't be directly survival direct inheritance,and this part of heritage need to be pass into the original holder of property,if the original holder of property is still survive,itwill be directly included in the original property rights property.If the original holder of propertyis dead,it is regarded as the property that will be split heritage,and the propertyshall be conducted in accordance with statutory succession in the future.As for the scope of inheritable property,this paper adopts the legislative system combining the general form and the enumeration form to stipulate.There are following five specific situations.First,the personal property before marriage belongs to the scope of inheritable property.Secondly,during the marriage,the person makes it clear that the property inherited by the surviving spouse and the deceased spouse belongs to the scope of inheritance.And then during the duration of marriage,the person expressly states that the property of the surviving spouse and the deceased spouse is subject to the scope of inheritance directly;Next,the property jointly owned by the husband and the wife during the term of their marriage,except in the case of non-direct inheritance mentioned in the article or otherwise agreed upon,may be directly inherited if the property is owned by the deceased spouse after division.Thereare three kinds of circumstances that can not directly inherit the inheritance.One is that the personal property of the deceased spouse before marriage comes from the inheritance of the original part of the inheritance without direct inheritance.Second,the property inherited by the deceasedspouse during the marriage does not have the direct inheritance,unless the original property owner clearly makes the intention to inherit the property jointly by the husband and wife.Finally,the property donated by the third party to the deceased spouse before his or her death during the duration of marriage shall not be directly inherited,unless the third party expressly makes a donation of the property to the couple.