Inheritance law in ancient Rome
[3] In the case of intestacy, Roman inheritance law had no concept of primogeniture and treated male and female children equally.
Roman law recognised very broad freedom of testation, but wills had to strictly follow correct formulae and phrases in order to be valid.
In addition to this, it could name a legal guardian (tutor) for underage children, manumit slaves, and leave legacies to third parties.
[2][4] Property went first to sui heredes ("his own heirs"), who were any children of the deceased that had remained under his patria potestas ("paternal power") until his death.
[1] There was no assumption of primogeniture - all children, male and female, received an equal share of the estate.
[6][4] This system was altered by the law of the praetor, so that all children, including emancipated children, inherited in first instance, then agnate relatives in the male line, then relatives in the male or female line based according to six degrees of proximity, and finally the widow of the deceased (excluded because she was assumed to form part of her father's inheritance, not her husband's).
Legitimate and illegitimate children were made the presumed heirs of their mothers by the senatus consultum Orfitianum.
[8] In Late Antiquity, Justinian abolished this system in two rulings delivered in AD 543 and 548, in favour of a system where property of the deceased went to the descendants in first instance, then to ascendants and siblings, and then to more distant relatives, with no distinction between the male and female line and no right to succession on the part of the widow.
[11] But any Roman citizen who had reached the age of majority could make a will for property that they possessed in their own right.
[12][11] Non-Romans (peregrini) and people with intellectual disabilities could not make wills under Roman law.
[12] In addition to this, it could name a legal guardian (tutor) for underage children, manumit slaves, and leave legacies to third parties.
By the Late Republic, the actual ceremony was no longer carried out, although the term was still being used in the second century AD.
But children who had not been emancipated before death (sui heredes) and slaves who were simultaneously freed and appointed heir in the will could not refuse the role.
[18] The praetor's law provided an alternative, the bonorum possessio ("order for possession of the estate"), where the heir was determined by the ruling of a magistrate.
It was impossible under Roman law to make a community, state, trust, or company the heir.
[11] Under the Lex Julia de maritandis ordinibus of 18 BC and the Lex Papia Poppaea of AD 9, unmarried adults could not inherit or receive legacies and married adults without children could only receive half the inheritance.
Legacies could provide a method for leaving property to people who could not legally be heir, but foreigners, communities, and uncertain persons could not be legatees either.
[20] Legacies were often used to leave money to towns or associations for specific purposes (e.g., holding games in honour of the deceased, constructing public buildings, providing heating for the bathhouse or oil for the gymnasium.
[20] Under the Lex Falcidia of 40 BC, legacies could not take up more than three-quarters of the total estate (i.e. the heirs had to receive at least a quarter).
If the legacies were more than this amount, then they would be reduced in order to ensure that the heirs received a quarter of the total value of the estate.
[11] Fourth-century laws mention "immorality" and becoming a gladiator as reasons and Justinian provided a full list in AD 542.
[29] Thirdly, whereas legacies failed if there was no heir or the will was invalid, fideicommissa still functioned, as long as the trustee benefitted from the estate - even in the case of intestacy.
For example, the property might be entrusted to the widow, who could use it for the rest of her life, and then would be required to pass it to the main heirs of the estate on her death.
