Rethinking legitimate in mozambican law based on the experience of comparative law

Abstract

This article thesis critically examines the concept of legitimate (forced heirship) in Mozambican inheritance law, in light of the principles of private autonomy and the right to property. As established in Article 136 of the Law of Succession, the legitimate refers to the portion of the estate that the testator cannot freely dispose of, as it is legally reserved for certain heirs. While rooted in the protection of the family and the principle of familial solidarity, this restriction increasingly conflicts with modern civil law values that emphasize individual freedom and patrimonial self-determination. The research adopts a qualitative and comparative approach, analyzing legal systems such as those of the United States, England, and Mexico, where testamentary freedom is more broadly recognized, albeit with mechanisms to assist vulnerable family members. As a result, the study concludes that the legitimate, as currently configured in Mozambican law, represents a significant obstacle to private autonomy and the full exercise of the right to property, unjustifiably limiting the testator’s will. Mozambican inheritance law remains tied to outdated historical concepts, failing to reflect the country’s contemporary legal and social realities. In contrast, the comparative systems examined demonstrate a more advanced and balanced approach, safeguarding family protection while upholding the principles of private autonomy and property rights. The research calls for a critical reassessment and reform of Mozambican succession law, in order to align it with constitutional values and evolving legal standards in modern private law.