Arvsrätt efter den efterlevande maken utan egna arvingar : En analys av konsekvenserna av HD:s tolkning av 3 kap. 8 § ÄB

Sammanfattning: There are many practical implications connected to the distribution of the inheritance of a deceased married person, the rules on inheritance distribution are regulated in the Swedish Inheritance Code.  The Inheritance Code was reformed in 1987 with the aim of strengthening the spouses’ inheritance status. Among other amendments, a new law was introduced in chapter 3 paragraph 8 of the Inheritance Code. Pursuant to the new law, in situations where heirs are left only after one of the spouses, they shall inherit everything upon the death of the surviving spouse. The purpose of the legislation was to restrict the Swedish General Inheritance Fund’s right to inherit.  The interpretation of the paragraph has raised extensive discussions in the legal doctrine, mainly relating to the following three aspects: firstly, whether the paragraph requires a concrete right to secondary inheritance, secondly, which rel- atives have the right to inherit, and lastly, the legal nature of the paragraph. The meaning of the paragraph has been clarified in the jurisprudence of the Supreme Court of Sweden to eliminate any uncertainties.  This thesis aims to examine how chapter 3 paragraph 8 of the Inheritance Code shall be, de lege lata, and ought to be, de lege ferenda, interpreted.  In conclusion, pursuant to the case law of the Supreme Court of Sweden, the paragraph only grants the first and second order of heirs the right to inherit. With regard to the legal nature of the paragraph, the court has stated that the paragraph merely determines allocation of inheritance shares. Furthermore, the court held that the paragraph requires a concrete right to secondary inheritance, albeit heavily criticized. Through the analysis of the Swedish Supreme Court ruling conducted herein, it can be concluded that the requirement puts children of the de- ceased person in a previous marriage in a disadvantaged position, whereby they are treated differently from other heirs. Additionally, it contradicts basic Swedish principles of law, such as “parantelprincipen”. Although the supreme court’s practice provides guidance on how the paragraph should be interpreted, the case law concerning chapter 3 paragraph 8 of the Inheritance Code has regardless resulted in several consequences that affect fundamental principles of the Swedish inheritance law.  I argue, de lege ferenda, that the requirement of concrete right to secondary inheritance ought to be removed completely as it may put children of the deceased person in a previous marriage in a disadvantage. Upon removing the requirement, the negative consequences would be eliminated. Therefore, this thesis 3 seeks to urge the legislature to review the paragraph to ascertain whether this requirement is necessary.