OLG Brandenburg (3rd Civil Senate), decision of 26 January 2023 - 3 W 71/22 (matrimonial property regime for German-Cuban couple with close ties to Cuba)

Central standards: BGB §§ 1931 para. 3, 1371 para. 1; EGBGB aF Art. 14 para. 1, 15 para. 1; EuErbVO Art. 21 para. 1

Guiding principle:

Habitual residence under Article 21(1) of the EU Succession Regulation is to be understood in the sense of a centre of existence or a centre of vital interests, the determination of which requires an overall assessment of the deceased's circumstances in the years preceding his death and at the time of death. (para. 15)
If the deceased was a national of a State or had all his substantial assets in that State, his nationality or the place where those assets are located may be a particular factor in the overall assessment of all the factual circumstances for the purposes of determining habitual residence, even if the deceased moved to another State to work there for professional or economic reasons, for example, but maintained close and firm ties with his State of origin. (para. 16)
When assessing which country the spouses were most closely connected to at the time of marriage, all circumstances of the individual case must be taken into account. In addition to the common social ties of the spouses to a state through origin, language, culture, religion and professional activity, the place of marriage, provided it is not chosen entirely at random, and the objectively ascertainable common future plans of the spouses as well as a common simple residence, provided this is not only of a very temporary nature, are of essential importance. (para. 25)

Facts of the case:

The applicant and the third party are the only descendants of the deceased; the first party was married to the deceased from 10 October 2010 until his death. The deceased was a German national, the party 1 is Cuban.

The applicant is seeking the issue of a certificate of inheritance which identifies him and the third party as heirs to 3/8 each and the first party as heiress to 1/4. He believes that the effects of the marriage under matrimonial property law are governed by Cuban law via the connecting rule of Art. 14, 15, Art. 229 § 47 para. 1, 2 EGBGB with the consequence that § 1371 BGB does not apply. § Section 1931 para. 4 BGB was also not applicable accordingly. The marriage had been lived exclusively in Cuba and the spouses had not intended to move to Germany.

The first party believes that she has become a 1/2 heir because German matrimonial property law and thus §§ 1931 para. 3, 1371 para. 1 BGB apply. This is because the spouses had the closest ties to Germany because they had wanted to settle in Germany after the marriage. This had not happened because their daughter was initially still a minor and they had not wanted to leave her alone in Cuba - even later as a student - or her sick parents.

By order of 30 March 2022, the AG deemed the facts necessary to substantiate the application of 27 April 2021 for the issue of a certificate of inheritance to be established and suspended the immediate effectiveness of the order. The appeal by the parties to 1.

For reasons:

1 The applicant and the third party are the only descendants of the deceased; the first party was married to the deceased from 10 October 2010 until his death.

2 The deceased was a German national, the party 1 is Cuban.

3 The applicant is seeking the issue of a certificate of inheritance which identifies him and the third party as heirs to 3/8 each and the first party as heiress to 1/4. He believes that the effects of the marriage under matrimonial property law are governed by Cuban law via the connecting rule of Art. 14, 15, Art. 229 § 47 para. 1, 2 EGBGB with the consequence that § 1371 BGB does not apply. § Section 1931 para. 4 BGB was also not applicable accordingly. The marriage had been lived exclusively in Cuba and the spouses had not intended to move to Germany.

4 The first party opposes this. She argues that she became a 1/2 heir because German matrimonial property law and thus §§ 1931 para. 3, 1371 para. 1 BGB apply. The spouses were most closely connected to Germany because they had wanted to settle in Germany after the marriage. This had not happened because their daughter was initially still a minor and they had not wanted to leave her alone in Cuba - even later as a student - or her sick parents.

5 By order dated 30 March 2022, the Local Court deemed the facts required to substantiate the application dated 27 April 2021 for the issue of a certificate of inheritance to be established and suspended the immediate effectiveness of the order. In its reasoning, it stated that German inheritance law applied in accordance with Section 21 (1) Regulation (EU) 650/2012 because the deceased was habitually resident in Germany at the time of his death. Pursuant to Art. 15 para. 1 EGBGB, the matrimonial property consequences of the marriage were subject to the law applicable to the general consequences of the marriage at the time of the marriage, i.e. in the absence of a choice of law (Art. 15 para. 2 EGBGB), the law of the state in which both spouses had their habitual residence (Art. 14 para. 2 no. 1 EGBGB), in which both spouses last had their habitual residence during the marriage if one of them still had his or her habitual residence there (Art. 14 para. 2 no. 2 EGBGB), the law of the state to which both spouses belonged (Art. 14 para. 2 no. 3 EGBGB) or otherwise the law of the state with which the spouses were most closely connected in another way (Art. 14 para. 2 no. 4 EGBGB). In this case, the marriage of the deceased to the first party was subject to Cuban law because the spouses had not made a choice of law and were in any case most closely connected to Cuba in other ways. Based on the submissions of both parties and the testimony of the witness A... K..., the court was convinced that the spouses had lived their marriage exclusively in Cuba. The husband had spent three to six months a year in Cuba, while the first respondent had only been to Germany twice for holidays. There was no apparent intention to move to Germany one day. Joint future plans of the spouses had to be objectively ascertainable and sufficiently concrete. However, there had been no concrete plans to move. According to the witness, the testator had at best thought before the marriage that he would be able to take the first spouse with him to Germany in the summer months. A permanent move of the wife to Germany had not been planned at any time, however. On the contrary, the testator had loved Cuba far too much and had appreciated the climate there - also because of his illness. Thus, neither after the daughter of party 1 came of age nor after the testator's permanent return to Germany did the wife move to Germany, let alone stay there for any length of time. In addition, the testator had spoken Spanish fluently, while the first party had learnt German in fragments at best. The testator had regularly spent time in Cuba since the 1990s and had made numerous friends there. Finally, the testator and his wife had built a house on her parents' property. He had returned to Germany because of visa issues and, most recently, mainly because of medical treatment for his illness. As the statutory matrimonial property regime of the so-called community of property applies under Cuban law, the first party had only become a half heir.

6 The appeal of the parties to 1 is directed against this. It asserts that the contested decision is based on a contradiction in judgement. While German law is declared applicable to the legal succession because the deceased had his habitual residence in Germany, the Local Court applies Cuban law to the matrimonial property regime because both the marriage and the deceased were more closely connected to Cuba. If the deceased had been more closely connected to Cuba, the relevant inheritance law would have had to be determined in accordance with Article 21(2) in conjunction with Article 34(2) of the EU Succession Regulation, especially as the deceased had remained in Germany involuntarily at the end of his life due to his state of health. However, it was correct to apply German inheritance law overall. Art. 21 para. 1 of the EU Succession Regulation was decisive for local jurisdiction. Article 21(2) of the Regulation on Succession was ruled out, as both the deceased and the couple had been more closely connected to Germany; in any case, no closer connection to Cuba could be established. The question of the classification of the marriage under matrimonial property law was irrelevant. The Local Court wrongly assumed that Section 1371 BGB was a matrimonial property regime. However, the ECJ had qualified Section 1371 (1) BGB as a standard under inheritance law (decision of 1 March 2018 - Case C-558/16). Since German inheritance law is to be applied, Art. 6 para. 1 EGBGB prohibits the application of a legal norm from another legal system if it is obviously incompatible with the essential principles of German law, in particular if it violates the German constitution (Art. 6 para. 2 EGBGB. The Cuban community of accrued rights contradicts the principle of freedom of contract in matrimonial property law (Art. 2 Para. 1 GG). As the marriage had been concluded before 29 January 2019, Art. 14 para. 1 no. 3 EGBGB (old version) was relevant, not Art. 14 para. 2 no. 4 EGBGB. In applying the standard, the Local Court had only taken into account the deceased's residence in Cuba and their residence in Germany. In doing so, it had disregarded the fact that not only had the testator established close friendships with Cubans, but that she had also been introduced to the testator's German circle of friends and had maintained close relationships here. Their joint living expenses had been covered solely by the deceased's German pension. She had given up her Cuban job in order to devote herself entirely to her husband and her plans to emigrate. The Local Court had not taken into account the fact that the testator had taught her German, as the witness had testified. The testator had also registered her with the German tax office and had only ever travelled to Cuba on a tourist visa, although he could have applied for a permanent visa. Due to the testator's chronic illness, a close connection to the German healthcare system was also absolutely necessary. The fact that she had wanted to move to Germany was confirmed by the written statements she had submitted from Juan Justo Barrera Chaon, Rafaela Martinez Savon, Bernardo Martinez and Gianni Jaen. Her relocation plans had also manifested themselves objectively. The marriage had been formalised and legalised at the German consulate. She had also attended the German course required for permanent residence. The necessary accounts had been set up and all the necessary papers had been prepared. The fact that they had extended and renovated their Cuban house together did not speak against this either. This was because they needed accommodation until they moved to Germany, which was planned for the time after their daughter came of age. A closer connection to a country - Cuba or Germany - could not be established beyond doubt. Consequently, German matrimonial property law must be applied as the relevant standard at the place of jurisdiction. The local court assumed the credibility of the witness without further ado. It did not take into account the fact that the witness had tried to persuade her - under the pretext of helping her to apply for a widow's pension - to sign a declaration of renunciation of inheritance, taking advantage of her ignorance. He had not allowed her to visit her seriously ill husband in Germany and had blocked all attempts at contact. She had only learnt of her husband's critical state of health and finally of his death through a Cuban friend. The witness had also intended to initiate divorce proceedings using his position as an authorised representative, although the testator was no longer able to express himself verbally at this point. She had not cancelled her trip to Germany in 2012 prematurely because she did not like it in Germany. Rather, she had travelled to Germany from 5 July 2012 to 30 September 2012 using the Schengen visa issued for the period from 4 July to 30 September 2012. The purpose of this trip was to prepare for the move.

7 With reference to the reasons in the contested order, the Local Court did not uphold the appeal and referred the matter to the Senate by order dated 17 May 2022.

8 The applicant defends the contested decision and argues that the appeal is already inadmissible because the appellant is seeking the issue of another certificate of inheritance in amendment of the contested decision, although she has not submitted an application for a certificate of inheritance. Furthermore, the appeal was unfounded. The application of German inheritance law does not contradict the application of Cuban matrimonial property law. The provisions on the applicable inheritance law were based solely on the person of the deceased at the time of death, whereas the determination of the applicable matrimonial property law depended on the joint relationship of the spouses at the time of the marriage. Even if the Local Court incorrectly applied the current law contrary to the transitional provision, it came to the correct conclusion. It is true that the time of the marriage must be taken into account when assessing the closest common connection to a state. However, the course of the marriage is indicative of the circumstances at the time of the marriage. The legislator had laid down assessment criteria for the applicability of Art. 14 para. 1 no. 3 a. F. EGBGB in the explanatory memorandum to the law (BT-Drs. 10/5632), which the BGH has also applied in its case law. The assessment of the aforementioned criteria inevitably leads to the determination of the closest common connection of the spouses to Cuba. This was because the deceased's social life had already taken place predominantly in Cuba at the time of the marriage. The deceased was closely connected to Cuban culture and the spouses' common language was Spanish. The spouses had planned to live together in a house in Cuba and had finally realised this. Not only the marriage, but also a large wedding celebration had taken place in Cuba. There had been no corresponding connection with Germany at the time of the marriage. The deceased's sources of income could not be decisive, even if they had been used to cover the spouses' living expenses in whole or in part. This was because the testator had already established these before he had met the first party. Unlike a professional activity, he had not been able to transfer his income (pension and lease) to another location. Moreover, the deceased's financial resources had been used in Cuba, in particular for the renovation of the house that the couple lived in in Cuba. Any future plans of the spouses with regard to a move could only justify a close joint connection to Germany if these were objectively ascertainable, concrete and binding and should also have been realised as soon as possible after the marriage. However, the party re 1 did not submit plans for a timely move herself. A subsequent notarisation of the marriage had not taken place in Germany either, otherwise it would have had to be entered in the register of births, but this had not happened. Against the background of the fact that the Cuban community of property had existed for the deceased's marriage to the party to 1, the application of §§ 1371 para. 1, 1931 para. 1 BGB was not justified. The fact that the aforementioned standards were provisions of inheritance law was irrelevant, because a case of community of accrued gains or separation of property had to exist as a prerequisite for the increase in the inheritance share regulated therein. The community of accrued gains is not functionally equivalent to the matrimonial property regimes of community of accrued gains and separation of property. Cuban matrimonial property law was also not exceptionally inapplicable pursuant to Art. 6 EGBGB. A lower degree of communitisation is not sufficient for this because German law even provides for the lowest possible degree of communitisation with the separation of property. The mandatory matrimonial property regime in Cuba or the exclusion of a choice of matrimonial property regime also does not automatically constitute a violation of public policy. Moreover, the principle of the least possible interference to be observed in the context of Art. 6 EGBGB would also only lead to a matrimonial property regime or choice of law agreement between the spouses being considered valid. However, the spouses had not reached such an agreement in this case.

II.

9 The appeal, which is admissible pursuant to sections 58 et seq. of the FamFG, is unfounded.

Contrary to the opinion of the applicant, the appeal is admissible, in particular the complainant is adversely affected by the contested decision within the meaning of § 59 FamG. This is because the person who asserts that their status under inheritance law is not or not correctly stated in the declaratory decision is entitled to appeal against a decision pursuant to Section 352 e FamFG, in which the facts required for the probate court to issue a certificate of inheritance are deemed to have been established; they must therefore claim the inheritance right attested for another person in whole or in part for themselves (OLG Hamm, decision of 18 July 2013 - I-15 86/13, juris; Sternal/Jokisch, FamFG, 21st ed, § Section 59 para. 79). Such a case exists here. The complainant is claiming an inheritance share of 1/2 and not just 1/4, as stated in the contested decision.

11 Insofar as the applicant believes that the appellant has applied for a different certificate of inheritance to the one applied for by the applicant in amendment of the contested decision, and that this infers an alleged inadmissibility of the appeal, this is incorrect for several reasons. This is because, in order to achieve its legal protection objective, the appellant has correctly requested that the petitioner's application be dismissed in amendment of the contested order. However, even if she had made the application alleged by the petitioner, her appeal would not be inadmissible. This is because according to § 65 Para. 1 FamFG, although the appellant should state the grounds for the appeal, the appeal is also admissible if the appellant does not submit a formal statement of grounds either when filing the appeal or within a deadline set by the court (Sternal/Sternal, loc. cit., § 65 para. 6). A formal application is also not required. The appeal must ultimately only indicate, on the basis of a favourable interpretation, the extent to which the appellant is contesting the contested decision. The court of appeal must then establish the facts relevant to the decision ex officio on the basis of the facts and disputes on file, taking into account the official duty of investigation that also exists in appeal proceedings (Sternal/Sternal, loc. cit.).

12 The international jurisdiction of the German probate courts to be examined in the appeal (BGH, decision of 26 June 2019 - XII ZB 299/18, para. 10; Sternal/Sternal/, FamFG, 21st edition, Section 65 para. 21) is in any case given in accordance with Art. 10 para. 1 a) EU Succession Regulation (Regulation (EU) 650/2012). The real estate owned by the deceased constitutes estate assets located in Germany pursuant to Art. 10 para. 1 EU Succession Regulation. In addition, the testator was a German national at the time of his death (see OLG Frankfurt, decision of 14 September 2020 - 21 W 59/20, para. 17, juris).

The appeal is unfounded, as the inheritance quotas stated in the contested declaratory judgement are correct.

14 German inheritance law, which is applicable here pursuant to Art. 21 para. 1 of the EU Succession Regulation, is decisive for determining the inheritance quotas. Accordingly, succession is governed by the law of the state in which the deceased had his habitual residence at the time of his death.

15 Habitual residence is to be understood in the sense of a centre of existence or a centre of vital interest, the determination of which requires an overall assessment of the circumstances of the deceased's life in the years prior to his death and at the time of death (Burandt/Rojahn/Burandt/Schmuck, Erbrecht, 4th ed., EuErbVO Art. 21 para. 3).

16 According to the relevant indications in recitals 23 and 24, the duration and regularity of the deceased's residence in the State concerned and the circumstances and reasons relating thereto are particularly relevant (ECJ, judgment of 16 July 2020, Case C-80/19, para. 37; Burandt/Rojahn/Burandt/Schmuck, 4th ed. 2022, EU Succession Regulation Art. 21 para. 4). The focus of the family and social relationships is also an important criterion here (Burandt/Rojahn/Burandt/Schmuck, 4th ed. 2022, EuErbVO Art. 21 para. 5). However, habitual residence should also indicate a particularly close and firm connection between the estate and the state in question. If the deceased was a national of a state or had all of their significant assets in that state, their nationality or the place where these assets are located can be a special factor in the overall assessment of all factual circumstances, as stated in the last sentence of recital 24, even if the deceased moved to another state for professional or economic reasons - possibly for a longer period of time - in order to work there, but maintained a close and firm connection to their state of origin (OLG Frankfurt, decision of 14 September 2020 - 21 W 59/20/2020 - 21 W 59/20/20/2020 - 21 W 59/20/20/2020).09.2020 - 21 W 59/20, para. 27, juris). The testator's intentions may also have to be taken into account as part of the overall assessment. In this context, the lower weight of the simple will to remain in the context of the overall assessment due to a continued will to return can be outweighed by the longer duration of residence in the foreign country and the testator's roots there despite the continued will to return (OLG Frankfurt, decision of 14 September 2020 - 21 W 59/20 -, para. 29, juris). An unconditional will to remain, excluding any intention to return, is not required in any case (OLG Frankfurt, loc. cit., para. 30, juris).

17 The overall circumstances here suggest that the deceased's habitual residence at the time of his death was in Germany.

18 However, the deceased had social and family relationships both in Cuba and in Germany. The complainant and numerous Cuban friends of the deceased lived in Cuba, while his two sons - parties 2 and 3 - and his brother, the witness K... , lived in Germany. In this respect, no centre of gravity in one of the two countries can be established. However, the testator lived in Germany continuously from 28 March 2018 until his death on 2 November 2020, i.e. for more than two and a half years, having previously lived in Cuba and Germany approximately half a year each since the mid-1990s. He had German citizenship. All of his assets in the form of real estate and bank accounts were located in Germany. Whether the testator still had the will to travel to Cuba in view of his relapse of illness from 2018 - he was terminally ill with a brain tumour - is very doubtful (especially against the background of the course of the illness, accompanied by a loss of speech, increasing need for care and the granting of the power of attorney on 7 December 2019 to his son - the third party - and his brother), but ultimately not decisive in view of the aforementioned criteria. This is because the duration of residence of two and a half years before his death and his roots in Germany predominate.

According to Section 1931 para. 1 BGB, which is therefore applicable here, the complainant is entitled to 1/4 as the legal heir. The inheritance share of the parties 2 and 3 is 3/8 each pursuant to Section 1924 (1) and (4) BGB.

20 Other inheritance ratios do not result here from Section 1931 para. 4 BGB, which applies in the case of separation of property, or from Section 1371 para. 1 BGB, which applies to the community of accrued gains. § Section 1371 para. 1 BGB is a provision of inheritance law (ECJ, judgement of 1 March 2018 - Case C-558/16, NJW 2018, 1377 para. 41) and is therefore directly applicable here (see OLG Hamm, decision of 21 March 2019 - 10 W 31/17, para. 28).

21 The complainant and the testator lived neither in a community of accrued gains nor in separation of property. Rather, they were subject to community of property under Cuban law.

22 Art. 15 para. 1 EGBGB (old version) stipulates that - if the parties have not made a choice of law, as is the case here - the matrimonial property consequences of the marriage are subject to the law applicable to the general consequences of the marriage at the time of the marriage. The matrimonial property law applicable at the time of the marriage results from Art. 14 para. 1 no. 3 EGBGB in the version valid until 28 January 2019 (old version).

23 According to Art. 14 para. 1 EGBGB old version, in the absence of a choice of law, the general effects of marriage are subject to

the law of the country to which both spouses belong or last belonged during the marriage, if one of them still belongs to that country, otherwise
the law of the country in which both spouses have their habitual residence or last had their habitual residence during the marriage, if one of them still has his or her habitual residence there, or alternatively
the law of the state with which the spouses are otherwise most closely connected.

24 Point 1. does not apply here because the deceased and the complainant never had the same nationality; rather, the complainant has only Cuban nationality, while the deceased had only German nationality. It is doubtful whether point 2. applies here, since only Cuba comes into consideration with regard to the complainant's habitual residence, because the concept of habitual residence generally requires at least a six-month stay in the country concerned (BeckOGK/Hertel, EGBGB, as of 1 March 2020, Art. 14 para. 94). This is unlikely to apply to the testator, who generally travelled to Cuba twice a year before and after the marriage on a tourist visa valid for three months and therefore stayed there for a maximum of six months. Ultimately, however, this is irrelevant, because according to point 3, Cuba is in any case the country with which the spouses were most closely connected.

25 When assessing which country the spouses were most closely connected to at the time of marriage, all circumstances of the individual case must be taken into account. In addition to the common social ties of the spouses to a state through origin, language, culture, religion and professional activity, the place of marriage, provided it is not chosen entirely at random, and the objectively ascertainable common future plans of the spouses (in particular the establishment of a common habitual residence in a particular state already envisaged at the time of the marriage) as well as a common simple residence, provided this is not only of a very temporary nature, are of essential importance (Staudinger/Henrich, BGB, Neubearbeitung 2010, Art. 14 EGBGB para. 67; Hausmann, Internationales und Europäisches Familienrecht, 2nd ed, Chap. B. para. 416; MüKoBGB/Looschelders, 8th ed., EGBGB Art. 14 para. 125, BeckOK BGB/Mörsdorf, 64th ed., status: 01.11.2022, EGBGB Art. 14 para. 43).

26 Taking all the circumstances into account, the spouses were most closely connected to Cuba at the relevant time of the marriage. This is already apparent on the basis of the complainant's submissions and the concurring submissions of all parties involved. The spouses did not marry in Cuba by chance, they also had their common social relations there and intended to live out their marriage there in the following years. The testator was able to communicate effortlessly in Spanish and had felt a close cultural bond with Cuba since the mid-1990s, even before the marriage in 2010; he had cultivated friendships with Cubans and romantic relationships with Cuban women years before and independently of the complainant. He also usually spent up to six months a year in Cuba before and after the marriage. The complainant, on the other hand, had no connection whatsoever to Germany when she got married; she neither spoke German to any significant extent nor did she have any family or social ties there. She visited Germany for the first time several years after the marriage, namely in 2012, and then again from 12 May to 6 August 2016. When they married, the spouses also intended to spend their married life together in Cuba, at least for the following years until the complainant's daughter, who was 15 years old when they married, came of age. For this purpose, they had already intended to renovate and convert a house belonging to the complainant in Santiago de Cuba at the time of their marriage, as can be seen from an email from the testator dated 20 June 2010 submitted by the complainant (p. 255-R), which they subsequently implemented (although this is not relevant, see MüKoBGB/Looschelders, 8th ed. 2020, EGBGB Art. 14 para. 126).

27 Whether they have considered moving their joint residence to Germany in the more distant future is irrelevant (see OLG Cologne, decision of 15 April 2015 - 4 WF 169/14, BeckRS 2015, 16000 marginal no. 6).

28 It is therefore irrelevant whether the spouses had such considerations at all and whether - as required (see KG, judgment of 20 December 2006 - 3 UF 59/06, BeckRS 2008, 1367 para. 18) - these were also objectively ascertainable, concrete and binding plans for the future. In any case, the further development after the marriage speaks against this, because the spouses spent their time together and their everyday life together (with the exception of two holiday trips by the complainant to Germany) in Cuba until the testator's final return to Germany on 28 March 2018. The complainant also did not succeed in acquiring sufficient knowledge of German or establishing social relationships in Germany. For this reason, she only learnt of her husband's death by chance through a Cuban woman she knew who was in a relationship with a German. This indicates that there were no such plans for the future at the time of the marriage (see BGH, NJW 2019, 2935 para. 31).

The matrimonial property regime of community of accrued gains under Cuban law cannot be equated with the matrimonial property regime of community of accrued gains by way of substitution either. According to the principle of substitution, phenomena under a foreign law can be equated with the figures of German law if they are functionally equivalent, which presupposes a correspondence in the essential normative features (OLG Hamm, decision of 21 March 2019 - 10 W 31/17, BeckRS 2019, 8475 para. 30). However, this is not the case here, as the statutory matrimonial property regime of community of property under Cuban law lacks a solution under inheritance law in the event of the dissolution of the marriage due to the death of a spouse. However, according to the prevailing opinion, this is a normative feature of the community of accrued gains under German law (BGH, decision of 13 May 2015 - IV ZB 30/14, para. 33; OLG Hamm, loc. cit., para. 31). Community of property regimes are also not functionally equivalent because, in the event of the death of a spouse, they would result in the surviving partner also benefiting from an increase in their statutory inheritance share by a quarter under German inheritance law in addition to their full share in the joint property under matrimonial property law (Hausmann/Odersky, Internationales Privatrecht in der Notar- und Gestaltungspraxis, 4th ed., 1st part § 3 para. 94a).

Contrary to the opinion of the complainant, there is also no contradiction in judgement due to the fact that German inheritance law is applicable here, but the matrimonial property law is governed by Cuban law. The applicability of German inheritance law results from the circumstances at the time of the deceased's death on 1 November 2020, while the relevant matrimonial property law is derived from the circumstances at the time of the marriage on 10 October 2010. Which matrimonial property regime applied to the deceased's marriage to the complainant is also only relevant for the present certificate of inheritance proceedings insofar as a possible increase in the inheritance quota in favour of the complainant pursuant to Sections 1931 (4) and 1371 (1) BGB had to be examined and ultimately ruled out.

The fact that the matrimonial property law here is governed by Cuban law also does not violate Art. 6 EGBGB. In view of the freedom of contract that exists in matrimonial property law, violations of public policy are rare anyway (BeckOGK/Stürner, BGB, Status: 01.11.2022, EGBGB Art. 6 para. 368). A violation is not apparent here. In this respect, reference is made to the correct reasoning in the statement of defence.

The decision on costs is based on Section 84 FamFG. Pursuant to Sections 61 (1) sentence 1, 40 (1) of the German Notarisation Act (GNotKG), the value of the appeal is determined according to the economic interest of the appellant in the success of his appeal (OLG Düsseldorf, order of 22 January 2016 - I-3 Wx 20/15; Burandt/Rojahn/Gierl, FamFG, 4th edition, FamFG Section 352 e marginal no. 236 with further references). N.). In this case, this is measured at a quarter of the estate value of € 1.7 million, because the complainant wants to improve on the inheritance share intended for her with the contested declaratory judgement by a quarter.

The requirements for the authorisation of an appeal on points of law pursuant to Section 70 FamFG are not met.

Issuing the order (Section 38 (3) sentence 3 FamFG):

Handover to the registry as registrar of the registry on 26/01/2023.