El futuro de la legítima: análisis comparado y una propuesta Alemana

This paper conducts a comparative law analysis of the models of mandatory family protection in succession law, with the aim of reflecting on a future reform of the system of compulsory portions in the Spanish Civil Code. The various models of mandatory family protection existing at the international level are critically examined, using as a reference point the so-called ‘Zimmermann Proposal’ from Germany (drafted by Prof. Zimmermann's working group), which advocates the replacement of the German compulsory portion system (pars valoris) with a system based on the post-mortem continuation of the maintenance obligation. First, the model of absolute freedom of testation (typical of the United States) is analysed, exploring how corrective mechanisms such as the doctrine of ‘undue influence’ and ‘unintentional preterition’ challenge its apparent autonomy and generate considerable litigation and legal uncertainty. Next, models of participation through a fixed share in the inheritance (the continental compulsory portion) are examined, distinguishing between their configuration as pars bonorum or pars valoris, and instruments that provide flexibility, such as enhancement or collective compulsory portions, are highlighted. The study also delves into systems of participation through a flexible share, which include Anglo-Saxon family provisions, characterised by broad judicial discretion to set a ‘reasonable provision’. Its variant in post-mortem alimony systems (prevalent in Mexico and Central America) is also addressed. Finally, it analyses hybrid or ‘legitimate maintenance’ models (characteristic of Cuba and Louisiana), which make the allocation of a fixed share conditional on the existence of a state of need. The comparative analysis of the strengths and weaknesses of each system provides a set of critical reflections intended to inform a future reform of the legitimary system in Spanish common civil law.