For many retirees and expats living in Mallorca, Spain is the preferred country for retirement. But what happens in the event of death? During the grieving process, relatives are often faced with the complex question of international jurisdiction: Is it necessary to go to a notary in Spain, or is the local court in Germany responsible? The answer lies in the European Succession Regulation (EU Succession Regulation), and this regulation holds significant legal surprises for many families.
The "habitual residence" is the deciding factor.
Since the EU Succession Regulation came into force in August 2015, German nationality is no longer automatically decisive for jurisdiction. Instead, the courts of the Member State in which the deceased had their "habitual residence" at the time of death have jurisdiction to decide on the entire estate.
This regulation is intended to prevent the risk of parallel proceedings before courts in different countries. It also applies mandatorily to the issuance of national documents of proof, such as the German certificate of inheritance. To determine the place of residence, the courts conduct a comprehensive assessment of all circumstances, in particular the length of stay, language skills, and social and familial integration.
Notary in Spain. When is Spain responsible?
Often, the center of one's life has effectively shifted to Spain, even if ties to Germany still exist. Several German Higher Regional Courts (OLG) have issued strict rulings on this matter:
- Higher Regional Court of Cologne (stays due to illness): Even if the deceased spent several weeks in Germany for medical treatment and rehabilitation before his death, Spain remains his habitual residence, provided the couple lived there together and owned Spanish property.
- OLG Hamm (Real Estate Ownership and Time Allocation): A temporary room with relatives in Germany is insufficient if the deceased lived in a 150-square-meter house in Spain. Furthermore, if credit card statements prove that most of the time was spent in Spain, German probate courts lack international jurisdiction.
- Hamburg Higher Regional Court (Economic Relocation): If pension payments are transferred to Spain, loans are taken out from banks there, and a Spanish address is given in official proceedings (such as a divorce), then the center of one's life is clearly in the south. A German probate court must then declare itself incompetent to hear the case.
When does the local court in Germany remain competent despite a connection to Spain?
Spending a lot of time in the sunny south does not necessarily make one a "Spaniard" in the legal sense. A landmark ruling by the Higher Regional Court of Düsseldorf This shows that jurisdiction can remain in Germany, even if the deceased lived predominantly in his own bungalow in Gran Canaria.
The judges ruled that Germany remained the place of habitual residence because:
- The testator consistently maintained a rented apartment in Germany in order to be able to return to his private surroundings in his home country at any time.
- He remained officially registered in Germany („registered address“), paid unlimited taxes there and retained his private health insurance.
- There was a deep social connection, for example through regular contact and the continuation of voluntary activities in a German civic association.
In such cases, it is possible that the German courts retain their international jurisdiction.
The question "Which court has jurisdiction under German-Spanish inheritance law: a notary in Spain or a local court in Germany?" cannot be answered generally. It depends heavily on the documented, objective circumstances of the deceased's life.
Do you have assets abroad or are you facing the process of settling an international inheritance? To avoid legal pitfalls, unnecessary delays, and double costs, have your case reviewed early on by our experts in international inheritance law.