Konkurrensen om kvarlåtenskapen - en jämförelse av särkullbarns och gemensamma barns rätt till arv i förhållande till efterlevande makes arvsrätt

Sammanfattning: The Swedish succession law is characterized by strong structures and slow changes. The legislation has not been subject of any major reform since the beginning of the 20th century. Therefore, the current legislation is characterized by elements of old norms and structures. These old norms and structures are challenged and debated today, both in the media and in political bodies. This thesis highlights the part of the debate that concerns the competitive relationship between the children of the decedent and the surviving spouse. The aim is to identify the underlying norms that has affected the legislation, both historically and today. Particular attention has been paid to the decedent's children born outside the current marriage in comparison with the spouses' shared children regarding their right to inheritance. The comparison is made in relation to the surviving spouse's right to inheritance. A legal dogmatic method is used to establish current law, while a legal historical method is used to investigate the historical development. However, to achieve the purpose of the thesis, a legal analytical method is primarily used. This involves critically studying the legislation from an external perspective and with other sciences. As a support science, I have chosen sociology of law and Anna Christensen's theory on normative patterns. Children have historically been treated differently in the Swedish succession law. Today all children are basically treated the same. However, differences arise when compared with the surviving spouse's inheritance rights. The construction with secondary inheritance for the spouses’ shared children works in favor of the surviving spouse and entails a much stronger right to inheritance for children born outside the current marriage than for the shared children. With the theory on normative patterns, I have mainly identified the pattern of protection for established position in the legislation, both historically and today. However, the position given the strongest protection has varied, somewhat depending on which other normative patterns have influenced the legislation. The spouses' shared children have gone from enjoying the strongest protection for established position to the weakest, while I think the situation for children born outside the current marriage is the opposite. The decisive factor is the enhanced protection for established position given to surviving spouses through the system with secondary inheritance, at the expense of the protection of the spouses' shared children. The final aim of this thesis is to do a critical examination of the legal framework. Here I discuss whether a new legislation in the field of succession may be relevant based on society's normative and structural development over the years. Foremost, I discuss the continued existence of the children's statutory portion and the right of a child born outside the current marriage to receive their inheritance directly at the time of the parent's death. In this context, I think that in the light of the development of society there is reason for a new investigation of the Swedish succession law and how it should be in the future. I justify this conclusion with the major changes that have occurred in society since the introduction of the rules. Today we have a significantly higher average life expectancy. At the same time, family constellations including children born outside the current marriage are not uncommon in society today. However, in case of a possible removal of the children's statutory portion and the right of children born outside the current marriage to receive their part of the estate directly, considerations are required. These reforms would mean a greatly increased protection for the surviving spouse's established position, while the protection for the children decreases. There are therefore reasons to consider how this can be compensated. A few such suggestions are mentioned at the end of the thesis. No matter what, a balance between the different interests needs to be made for securing the legitimacy of the legislation.