中美未亡配偶继承制度比较研究

A Comparison Study of Chinese and American Inheritance Law Regarding the Protection of Surviving Spouse

在婚姻合伙理论支持下,美国实行夫妻共同财产制的州将夫妻共同财产限于夫妻之间,很好的保护了未亡配偶的权利,却增加了其与血亲之间的矛盾。在保障支持理论支持下,实行普通法财产制度的州给予未亡配偶不同比例的法定和遗嘱继承份额。《美国统一继承法典》将两种理论相融合,在计算未亡配偶特留份时,把婚姻存续年限纳入特留份考量因素,使未亡配偶的付出和对其的补偿尽量相符,但该方法却将与婚姻关系不大的继承、遗赠和赠与财产也纳入计算,增加了不公的可能性。现代中国社会生活方式与我国《继承法》制定时相比发生明显变化,增加夫妻间的相互扶持义务十分必要。法定继承时,未亡配偶应先继承一定金额遗产,再与其他继承人一起按确定比例继承剩余遗产。同时,建立遗嘱继承特留份制度,并将婚姻存续年限作为计算特留份考虑因素,但无需建立未亡配偶用益物权制。

In some states of American the partnership theory allows the surviving spouse to inherit all the community property, which protects the surviving spouse＇s rights, but it impairs other heirs＇ inheritance rights. While in other states who practice common law the security theory allows the surviving spouse to inherit certain percentage of the separate properties of the decedent. The American Inheritance Law combines the two theories together, taking the length of marriage as a factor in computing the statutory share of the surviving spouse for compensation. However, this approach also puts properties obtained through inheritance, gifts, and devise as the statutory share, which may lead to unfairness. The social life style of modern China has taken much more greater change than the time when the Chinese Inheritance Law was born. So it is necessary to increase the mutual support obligation between husband and wife. When the decedent dies intestate, the surviving spouse should inherit certain amount of money and then inherit the rest with other heirs according to allocation proportion signed by the law. On the other hand, if the decedent omits the surviving spouse in the will, the surviving spouse can choose to contest the will to obtain his or her statutory share, determined by the length of marriage, etc. However, the surviving spouse should not be entitled to obtain the life estate of the decedent.