Roman Law and the Legal World of the Romans

Inheritance

The third phase does not involve a systematic updating like the Edict’s revisions of the statutory rules. Rather, there were a couple of imperial enactments of around the same time (mid second century ad), and with a shared underlying motivation. Under the SC Tertullianum , a mother inherits her children’s estate as if she were a sister, which puts her ahead of half-siblings, more distant cognati , and (in the case of an illegitimate child) all relatives except a son’s child. However, this was thought of as a special privilege for the mother and was available only if she had done her civic “duty” by giving birth to three or more children. Under the SC Orphitianum , a mother’s children are legitimi with respect to her (and thus get first chance, since she has no liberi ). Both of these decrees act to make mothers and their biological children close relatives for inheritance purposes. The combined effect was a major victory for the nuclear family over the agnatic. Children born outside of wedlock had no legal ties to their biological fathers. Their basic status – free or slave; citizen ship – came from their mothers’, but as noted earlier, inheri tance doesn’t work the same way. Thus, under the first two schemes, the illegitimate children of a Roman woman had no rights of intestate inheritance. A late (mid second cen tury ad?) reinterpretation of the notion of cognati recognized them as blood relatives to their mothers and so potentially in line to inherit. Still, this left them behind all their mothers’ agnates. It was only with the SC Orphitianum that they clearly inherited from their mothers (though still never from their natural fathers).

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