History
The institution began as a Germanic custom for intestate inheritance (which was the norm) under which all of a deceased's personalty was divided into thirds—the widow's part, bairns' part, and dead's part—the last of which, consisting of clothes, weapons, farm animals and implements, was usually buried with the deceased. With the adoption of Christian funerary practices, it became common to gift away the dead's part, and after the revival of the will, and consequently of testation, the dead's part came to be freely disposable.
Realty, or heritable property, on the other hand, was originally inherited in joint tenancy, termed gavelkind, and passed on to the kin group as a whole. However, after the household superseded the kin group in importance in the late Middle Ages, preference was given to the deceased's immediate family, specifically any surviving sons, and none could be favored over his siblings. However, gavelkind inheritance gave rise to inter-family rivalries, so primogeniture laws arose in some areas of feudal Europe giving preference to the eldest son in order to stem feuding. Nevertheless, under medieval communal society, family land could not be sold except for cause, and the family essentially had a right of first refusal (laudatio parentum) in any such sale; in some places, this restriction also applied to gifts.
The family was so favored that in order to keep property within the same family, women—who on marriage in effect joined another family—were accorded very few property rights. Therefore, widows were universally disinherited, though they were varyingly entitled to a dower and/or a terce (or curtesy in the case of widowers), that is, one third of the heritable marital estate. The terce was earliest known as tertia collaborationis and first appears in the Ripuarian law code, making it also a localized Germanic custom. In the customs of York and London, for example, a widow was entitled both to her widow's part (customary share) and terce (widow's chamber), the last of which was half—not a third—of the marital estate.
Eventually, these elements were all consolidated into the modern form of forced heirship most notably in Revolutionary France, which treated personalty and realty in the same way and applied gavelkind inheritance and the system of thirds to both forms of property. After abandoning dowries and dowers in the 20th century, many European countries created or increased the spousal share to be on par with the share of issue (legitime); Spain is an exception.
Read more about this topic: Forced Heirship
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