Article: Justifying family protection in the form of a fixed share: A Comparative and Historical Perspective

Mandatory family protection in the form of fixed shares has come under significant criticism. Among the reasons for that are that this type of family protection is seen as inflexible, for it operates irrespectively of the needs or merits of the person entitled to a share, and more fundamentally that it is regarded as a substantial constraint on the deceased’s testamentary freedom. But are testamentary freedom and mandatory family protection necessarily in conflict? What might the normative justifications of such family protection be? And, importantly, what might happen if we did away with it? This paper argues that the testator’s private autonomy and family protection do not need to be, and indeed should not be seen in opposition, and that testamentary freedom is not therefore a strong argument against family protection, including in the form of a fixed share. It aims to show that there are good reasons for keeping such protection. This is because family protection in the form of fixed shares, whether directly or indirectly, fulfils a range of different functions and thus protects a complex set of interests and values that deserve protection. Through a comparison with common law jurisdictions, this paper further illustrates that abolishing mandatory protection in the form of fixed shares, or replacing it by a maintenance scheme, might have consequences that need to be carefully considered.