A comparative study of the rights of the surviving spouse under the law of succession

Abstract

This thesis examines the law of succession in relation to the surviving spouse as it stands today, due to the enactment of Act XVIII of 2004 (an Act to further amend the Civil Code Chapter XVI of the Laws of Malta), and compares this current legal position to that as it was before such amendments were made, in order to determine whether an amelioration of the rights of the surviving spouse has-been-achieved by these last amendments. An examination of the relevant, equivalent provisions under Italian and German Law is also made in order to establish whether these latter laws are more advantageous in relation to the surviving spouse, when compared to those under Maltese law. This thesis is divided into four chapters, each covenng a principal issue or institution, which affects the rights of the surviving spouse. Chapter 1 covers the institute of unica charta wills, in particular the new requirements for the surviving spouse to incur forfeiture of such will. Chapter 2 examines the reserved portion, where focus is made on the new nature given to it and the increased portions saved by law in favour of the surviving spouse, with all the legal consequences involved. Chapter 3 covers the rights of the surviving spouse under the laws of intestate succession, such as the new nature given to these rights. The final Chapter covers four topics, all of which affect the rights of the surviving spouse, namely 'relative incapacities', 'second or subsequent marriages', 'article 758' dealing with residual legacies, and 'trusts'. Apart from a comparative analysis of the rights relating to the surviving spouse, this thesis also draws attention to any possible additional ameliorations that may be made to the articles affecting the rights of such spouse in order to further increase these rights.