Definition
Praeteritio (also spelled praeteritio or prjeteritio, reflecting variant transliterations from the Latin) is a term from Roman law describing the act of a testator who, in making a will, silently passes over an heir who would otherwise be entitled to a share of the estate — neither formally instituting that heir as a beneficiary nor formally disinheriting them. The omission is the defining feature: the heir is not named at all, neither to receive nor to be excluded. In Roman law, this silent passing-over carried significant legal consequences, distinct from a deliberate, express disinheritance.
Common Confusion
Praeteritio should not be confused with exheredatio, which is the express, formal act of disinheriting an heir by name. The two represent opposite techniques for excluding an heir: exheredatio is explicit and deliberate; praeteritio is the absence of any mention. The legal consequences under Roman law differed substantially depending on which had occurred. Researchers encountering either term in historical sources should take care not to treat them as interchangeable.
Why It Matters in Research
This term is unlikely to appear in common law materials. It is a term of art confined almost entirely to Roman law sources, civil law jurisdictions, and historical legal scholarship. Researchers will encounter it primarily in:
— Treatises on Roman private law, particularly in discussions of testamentary succession and the rights of sui heredes (those under the direct power of the testator).
— Civil law commentaries from continental European legal traditions, especially regarding forced heirship and the rights of children and other near relatives against testamentary exclusion.
— Comparative law materials addressing the historical divergence between civil law (which developed robust protections against praeteritio) and common law (which generally permitted a testator to omit heirs without formal procedure).
The term does not translate cleanly into modern common law vocabulary. Researchers approaching it from an Anglo-American background should resist mapping it onto concepts like intestacy, lapse, or even pretermitted heir statutes — though the last is the closest functional analog in modern American law. Pretermitted heir statutes in U.S. jurisdictions address the situation where a child (or sometimes a spouse) is omitted from a will, often presuming the omission was inadvertent and providing a statutory share. This is a functional descendant of the Roman concern underlying praeteritio, but the doctrinal structure and underlying assumptions differ.
The spelling variant visible in the source (prjeteritio) is a transcription artifact common in older printed legal dictionaries where the ligature ae was rendered as je or e in typesetting. Researchers should search under praeteritio as the normalized form.
Historical Dictionary Support
Black's Law Dictionary (2nd Ed., Supplemental) provides a compact but accurate entry: a passing over or omission by a testator who silently excludes an heir without instituting or formally disinheriting them, with a cross-reference to Mackeldey's Roman Law at section 711. Mackeldey's treatise (Ferdinand Mackeldey, Handbook of the Roman Law) remains a standard secondary source for Roman private law concepts of this kind and is the appropriate starting point for deeper research into the doctrine's structure and consequences.
The Black's entry captures the core meaning but offers no discussion of the legal effects that followed from praeteritio under Roman law — which varied depending on whether the omitted person was a suus heres (a person under the testator's direct legal power, such as a son), a postumous child, or a more remote relation. The consequences ranged from partial nullification of the will to the omitted heir receiving an intestate share alongside instituted heirs. This doctrinal texture is absent from the dictionary entry and must be pursued in Roman law treatises.
No other shelf sources in the Law Mind corpus include an entry for this term. Its absence from general common law dictionaries is itself informative — the concept was not received into English law, and its appearance in Anglo-American legal materials is almost always in explicitly comparative or historical contexts.
Jurisdictional Note
Praeteritio is a Roman law concept with no direct common law parallel. Modern civil law jurisdictions address the underlying problem through forced heirship rules and reserved share (legitim) doctrines. In the United States, pretermitted heir statutes serve an analogous function but operate on different theoretical foundations.