Legal Definitions - dead's part

The term "dead's part" refers to the portion of a deceased person's estate that they were legally permitted to distribute according to their will, after any legally mandated shares for a surviving spouse or children had been set aside. This concept is primarily historical in common law jurisdictions, where rules of "forced heirship" (requiring a certain portion of an estate to go to specific family members) were largely abolished. However, the underlying principle remains relevant in some civil law systems or in historical contexts where such restrictions on testamentary freedom existed.

Essentially, it was the part of an estate that the deceased had true control over, free from claims by family members who were entitled to a statutory or customary share.

• Example 1: Historical English Law

  Imagine a wealthy merchant in 17th-century London who dies leaving an estate worth £900. Under the customary laws of the time, if he had a wife and two children, his estate would typically be divided into three parts: one for his wife, one for his children, and one that he could freely dispose of by will. In this scenario, the wife would receive £300, and the children would collectively receive £300. The remaining £300 would be the merchant's dead's part. He could then, through his will, leave this £300 to a favorite nephew, a charity, or anyone else he chose, without legal challenge from his immediate family regarding that specific portion.

  This example illustrates how the dead's part was the residual portion of an estate that the deceased could freely bequeath, after the legally protected shares of the spouse and children had been satisfied according to custom.

• Example 2: Modern Civil Law Analogy

  Consider a person living in a country like France, which operates under a civil law system with forced heirship rules. If this person dies leaving a spouse and two children, French law dictates that a certain percentage of their estate (the "réserve héréditaire") must be reserved for the children. The remaining portion, which the deceased could freely dispose of through their will (known as the "quotité disponible"), functions similarly to the historical dead's part. If the deceased's will attempts to leave more than this "quotité disponible" to a non-family member, the children could challenge the will to protect their legally mandated share.

  This example demonstrates the enduring principle behind the dead's part, where a portion of an estate is reserved for family by law, and only the remainder is subject to the deceased's complete testamentary freedom.

• Example 3: Challenging a Will

  Suppose an individual in a jurisdiction that still recognizes a form of forced heirship (even if not explicitly called "dead's part") drafts a will leaving their entire estate to a distant acquaintance, completely disinheriting their only child. The child could initiate legal proceedings to challenge the will. Their argument would be that the deceased was legally entitled to dispose of only a certain portion of their estate (their dead's part or its modern equivalent), and the will attempts to bequeath more than that legally permissible share, thereby infringing upon the child's statutory right to inheritance.

  This example highlights how the concept of a dead's part defines the limits of a person's power to dispose of their estate by will, protecting the rights of certain heirs against complete disinheritance.