Inheritance Rights: A Constitutional Perspective

Sometimes, if all other arguments fail, defenders of inheritance will point towards the constitution and argue that its simply legally not possible to substantially or fully tax/abolish inheritance. Indeed many though by far not all constitutions explicitly acknowledge the right to bequeath, mostly alongside provisions about private property rights.

Protected indeed

Here’s an overview of some European constitutional references to the right to bequeath or inherit:^[1]

• Bulgaria / Art. 17.(1): “The right to property and inheritance shall be guaranteed and protected by law.”
• Croatia / Article 48: “The right of inheritance shall be guaranteed.”
• Czechia / Article 11 (1): “Inheritance is guaranteed.”
• Estonia / Article 32; “Succession of property is guaranteed.”
• Germany / Article 14 (1): “Property and the right of inheritance shall be guaranteed.”
• Hungary / Article XIII (1): “Everyone shall have the right to property and inheritance.”
• Italy / Article 42: “The law establishes the regulations and limits of legitimate and testamentary inheritance and the rights of the State in matters of inheritance.”
• Ireland / Article 43.1.2. “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”
• Poland / Article 21.1: “The Republic of Poland shall protect ownership and the right of succession.”
• Slovakia / Article 20 (1): “The right of inheritance is guaranteed.”
• Slovenia / Article 33: “The right to private property and inheritance shall be guaranteed.”
• Spain / Section 33 (1): “The right to private property and inheritance is recognized.”

Some constitutions also carry further elements that indirectly protect bequests and inheritance. As an example, Article 6 of the German constitution (Grundgesetz) protects the family and in conjunction with Article 14 has usually been used to protect inheritance in the family context specifically. If the family as a special social construct is protected by law, and inheritance is interpreted as a special and necessary expression of family relations, then it may be argued that an additional protective layer of inheritance arises from this.

Overall, it can be said that it is an established fact that many currently valid constitutions protect the right to bequeath or inherit in one or multiple ways.

Limits of protection

While many constitutions thus explicitly protect inheritance, nearly all of them also tie this protection to a social function that is to be served. Where private property incl. the right to bequeath or inherit don’t meet a social function, intervention e.g. via taxes is often implicitly or explicitly allowed or called for. Some constitutions, are very clear in this respect:^[2]

• Bavaria (Germany) / Art. 123 (3): “The inheritance tax shall also serve the purpose of preventing the amassing of huge fortunes by individuals.”
• Germany / Article 14 (1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. (2) Property entails obligations. Its use shall also serve the public good.
• Hungary / Article XIII (1): “Property shall entail social responsibility.”
• Italy / Art.42: “Private property is recognised and guaranteed by the law, which prescribes the ways it is acquired, enjoyed and its limitations so as to ensure its social function and make it accessible to all.”
• Ireland / “Article 43.2.1. The state recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this article ought, in civil society, to be regulated by the principles of social justice. Article 43.2.2. The state, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”
• Slovenia / Article 67: “The manner in which property is acquired and enjoyed shall be established by law so as to ensure its economic, social and environmental function.”
• Spain / Section 33 (2): “The social function of these rights shall determine the limits of their content”

Much as inheritance may be backed not only explicitly but also implicitly by protections such as the family, there are also further implicit limitations to the right of inheritance in many constitutions, particularly arising from articles around the equality of citizens and protection against discrimination.

• Germany / Article 3:
  “(1) All persons shall be equal before the law. […]
  (3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith or religious or political opinions. […]”
• Italy / Art. 3: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions.”
• Portugal / Article 13:
  “1) All citizens possess the same social dignity and are equal before the law.
  (2) No one may be privileged, favoured, prejudiced, deprived of any right or exempted from any duty for reasons of ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation.”

It can be challenged how those equality principles can ever be in line with inheritance. If am born into really poor conditions, do I also enjoy the same “social dignity” as a fellow citizen from rich background?^[3] Am I not “disfavoured” because of my “parentage” then, and the rich fellow is “privileged […] for reasons of ancestry”?

It seems there may be an inherent (and probably intended) conflict here in many constitutions which allow for partial taxation of inheritance as a means to combine the explicit acknowledgement of inheritance rights on the hand side, and the social purpose, dignity and equality component on the other side. If our constitutions partially allow, partially prohibit/limit inheritance, what level of inheritance taxation may then be appropriate (in the given constitutional settings)? One could argue, anything in the broad range and dimension of 50%^[4] may strike a simple balance between total confiscation/abolition (100%) and full allowance of inheritance with 0% tax. Given that we currently have effective inheritance tax rates of around 1-5% in most countries, there is a massive potential for increased inheritance tax rates.

As the violations of equality and social dignity become much worse the larger the inheritance, and may be more negligible in low ranges of inheritance, progressive rates beyond 50% may also still be well compatible with current constitutions. This would also be in line with the common ability-to-pay principle in taxation, where higher inheritance volumes of course imply a higher ability to pay. Tax rates beyond 50% may be justified also on the grounds that economic inheritance is only one of the inherited privileges alongside cultural and biological privileges. Given that the state can only meaningfully control economic inheritance, but not cultural and biological, inheritance tax rates beyond 50% may be justified to compensate for these other dimensions. Along these lines, one could argue that 100% inheritance tax may be justified as a means to satisfy equality and social dignity concerns, and that leaving sociocultural and biologically inherited privileges untouched can then be interpreted as respecting the constitutionally protected inheritance. However, in the context of the current constitutions who treat inheritance purely financial in the context of private property, such thinking maybe a bit too creative an accounting. This doesn’t undermine its moral and theoretical value, but it may just not be applicable to the current day constitutions.

Constitutional Change

As seen above, many constitutions are inconclusive when it comes to inheritance and bequeathing. There is explicit acknowledgement and protection, but also multiple and strong limitations and potential for taxation. However, for a confiscatory inheritance tax of 100% or more (to make up for sociocultural and biological privilege), it may well be that a constitutional adaptation would be required. The following is to show that such constitutional change does not require a revolution, has happened throughout history in many cases, and could well also be the path forward for inheritance taxation or abolishment of private inheritance.

Constitutions are not immutable; they evolve with societal values, economic structures, and shifts in political thought. Throughout history, constitutions have been amended or reinterpreted to accommodate new perspectives on social justice, property, and equality. For example, the United States Constitution underwent significant amendments to abolish slavery and introduce equal protection under the law. Similarly, many European constitutions introduced social welfare rights and tax reforms in the aftermath of the Second World War, recognizing that individual wealth could not be sustained independently of society’s welfare.

Thomas Piketty highlights how constitutional change is often shaped by pragmatic choices rather than strict adherence to established law. He notes that France has seen around ten regime changes since 1789, with each shift disregarding the rules of the previous system. One prominent example is the constitutional amendment in 1962 under the Fifth Republic, where President Charles de Gaulle introduced a referendum to establish direct presidential elections. This process technically violated the constitution since it bypassed the approval of both legislative chambers, a requirement for such changes. Nonetheless, de Gaulle’s decision was ratified by the Constitutional Council, which he himself had appointed, illustrating a flexible approach to constitutional law in response to political pressures. ^[5] This example highlights that constitutions can—and often do—evolve through informal or even controversial reinterpretations. Such flexibility could support future arguments for substantial inheritance tax reform, suggesting that constitutional adaptations, while challenging, are achievable when political momentum is strong enough.

If we look back into our modern history, we do find quite some examples of substantial constitutional adaptation across the globe:

• United States / 1865 / 13^th amendment: The abolishment of slavery
• United States / 1905 / 16^th amendment: Introduction of modern income tax
• United States / 1920 / 19^th amendment; Women’s right to vote
• Germany / 1956 / Article 87a GG: Reintroduction of military service and the establishment of armed defence forces (Bundeswehr)
• Canada / 1982 / Constitution Act, 1982 / Canadian Charter of Rights and Freedoms; Rights of the Aboriginal peoples of Canada;
• Finland / 1995 / 1995 Act (206/1995): Expanding of fundamental human rights provisions, including freedom of association and right to work. Section 5 (equality before law) has been expanded to prohibit inequality before law on the grounds of sex, origin, language, religion, conviction, opinion, state of health, and disability.
• Germany / 2009 / Article 109, paragraph 3 and Article 115 / Balanced budget (Schuldenbremse) amendment, restricting annual structural deficits to 0.35% of GDP
• Norway / 2014 / Revision of Constitution: Adding of various human rights
• Italy / 2022 / Amendments to Articles 9 and 41 of the Constitution: Enhances environmental protections of biodiversity and ecosystems for future generations while restricting private industry from harming health and the environment.
• Belgium / 2024 / Article 7a: Recognising animals as sentient beings.

Following a Norwegian Constitutional Court justice in a reflection on the 200 year history and evolvement of the Norwegian constitution, we may conclude that constitutional change should be regarded less of an option but actually more of an obligation: “It seems reasonable to suggest that in order for a constitution to stay alive, it must adapt and develop”.^[6] Much as we can’t imagine a time in which slavery was legal and women were not allowed to vote nowadays, people in the future will be surprised to learn that there were times in which inheritance of privilege was a constitutionally protected right. With animal rights, it’s slowly dawning on us that we are doing something seriously wrong, and the wind of change is slowly blowing through society, politics and now even the constitutions. The same will happen in regards to equality of opportunity, equal starting positions in life and the abolishment of inheritance.

 References & Further Reading

[1] Taken from European Union Agency for Fundamental Rights (EUAFR). EU Charter of Fundamental Rights. Title II

Freedoms. Article 17 – Right to property -> National Constitutional Law. https://fra.europa.eu/en/eu-charter/article/17-right-property#national-constitutional-law

[2] EUAFR, ibid. and https://www.bayern.landtag.de/fileadmin/Internet_Dokumente/Sonstiges_P/BV_Verfassung_Englisch_formatiert_14-12-16.pdf

[3] For a discussion how high inequality and excessive (inherited) wealth can undermine human dignity and self-respect, see Neuhäuser (2018): “Reichtum als Moralisches Problem“. Suhrkamp

[4] The German Constitutional Court argued for maximum inheritance rates lower than 50%, at least for family members or small bequests. However, the unclear wording of a “clearly predominant” share that should reach the inheritor creates room for interpretation. A range between 60 and 75% may be described by this term, resulting in maximum inheritance tax rates of 25 to 40%. Cf. German Constitutional Court / BVerfG, „Beschluss des Zweiten Senats vom 22. Juni 1995“ . – 2 BvR 552/91 -, Rn. 1-42, https://www.bverfg.de/e/rs19950622_2bvr055291.html (1995):  2 BvR 552/91

[5] Piketty (2023): „Eine kurze Geschichte der Gleichheit“. C.H.Beck

[6] Bardsen (2016): “Interpreting the Norwegian Bill of Rights”. Annual Seminar on Comparative Constitutionalism 21-22 November 2016 Faculty of Law, University of Oslo. https://www.venice.coe.int/CoCentre/Bardsen_Arnfinn_Interpreting_the_NOR_bill_of_rights.pdf