Наслеђивање између обичаја и закона сa посебним освртом на област Врања
Inheritance between Customs and Law with special Reference to the Area of Vranje

Author(s): Jadranka Đorđević-Crnobrnja
Subject(s): Social Sciences, Law, Constitution, Jurisprudence, Customs / Folklore, Geography, Regional studies, Regional Geography, History of Law, Sociology, Social Norms / Social Control
Published by: Етнографски институт САНУ
Summary/Abstract: Inheritance relation and institution of inheritance are the main subjects of this book. Inheritance is a process regulating the transfer of property by the deceased among his/hers inheritors. The transfer of property, assets, as well as certain rights and obligations from the deceased to inheritors settles in probate proceedings. Since 1955, inheritance in Serbia can be two fold: legal and testamentary. The Serbian legislature does not recognize other inheritances, such as inheritance contract. Therefore, an inheritance is possible only when a person dies, or when a person is declared dead. Legal inheritance presumes the deceased is inherited by his/hers legal inheritors, divided into inheritance levels according to kinship relatedness and kinship lineage with the deceased. Furthermore, inheritors of the closer inheritance levels exclude from the inheritance inheritors of the further inheritance level, hence the principle of exclusion is applied. The first inheritance level includes the deceased biological and adopted offspring, as well as conjugal partners. Persons related by blood with the deceased, that is, related by birth, have an equal right to inheritance as persons related by civil kinship, that is, related by adoption with the deceased. Gender equality of all offspring is one of the main legal rules of inheritance established by the socialist legislature in Serbia. Legal inheritance also assumes the rule according to which all inheritors of the same level have an equal right to inheritance. An exception to this rule is a spouse, for he/she, within legal inheritance, is entitled to one half of the deceased assets. That is, this inheritance portion is larger than inheritance portions of the deceased’s offspring, or all other inheritors. Testamentary inheritance, in contrast to legal, grants a person to dispose his/her property at own discretion. At the same time, the Law on Inheritance regulates that a testament cannot be open or property divided until the death of the Testator. In this way, compliance is attained between rules about testamentary inheritance and general rules of inheritance, as defined in the Law of Inheritance. Despite this regulation, practice often witnesses deviations from certain legal normative. Disagreement of theory and practice is not a sole characteristic of inheritance but also of other spheres in civil law. The institution of inheritance and inheritance practice do differ, however, from other law spheres in explicit parallel application of legal and customary normative. This parallel practice is in application throughout Serbia for more than a century in spite that civil law and legislation do not consider customary normative as a source of law. Customary law, due to this refutation, so represents an illegitimate law system. This issue provokes a number of questions, primarily: within legal and testamentary inheritance, how it is possible to have a parallel application of legal (official) and customary normative while at the same time, the whole procedure is considered legal? The parallel application of customary and law normative is not problematic solely in this matter but also raises a concern of collision in between the two respective normative. The collision emerges as a result of essentially different, opposed principles of inheritance within the two law systems.

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