Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland
Contents
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A. Introduction A. Introduction
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B. A first glance: a facial similarity B. A first glance: a facial similarity
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(1) Surviving spouse and no children (1) Surviving spouse and no children
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(2) Surviving spouse and children (2) Surviving spouse and children
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C. A further look into the historical development of the inheritance rights of the surviving spouse C. A further look into the historical development of the inheritance rights of the surviving spouse
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(1) Louisiana law (1) Louisiana law
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(2) Scots law (2) Scots law
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D. Are they really similar after all? evaluating preference versus protection D. Are they really similar after all? evaluating preference versus protection
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(1) Preference (1) Preference
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(a) Who is the surviving spouse? (a) Who is the surviving spouse?
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(b) Prior rights (b) Prior rights
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(c) Community property (c) Community property
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(2) Protection (2) Protection
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(a) Community property (a) Community property
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(b) Legal rights (b) Legal rights
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(c) Various other protective rights (c) Various other protective rights
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E. What can be learned? E. What can be learned?
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F. Conclusion F. Conclusion
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4 Inheritance and the Surviving Spouse
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Published:15 October 2009
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Abstract
This chapter examines how Louisiana and Scotland have implemented inheritance laws. It focuses on one significant aspect of intestacy, the position of the surviving spouse, and how each system achieves the dual goals of preference and protection. Both Scottish and Louisiana law have very different inheritance rights for the surviving spouse, although both attempt to achieve the same general purposes of fulfilling a decedent's preference and at the same time protecting the surviving spouse from arbitrary disinheritance. Part of this difference in the law is a product of history. Both systems still retain antiquated protective devices such as aliment or the marital portion, which create illusory protections at best. Even the more common provisions of each system's inheritance law, however, are anchored in history.
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