OLG Frankfurt, decision of 14 September 2020 - 21 W 59/20
Central standards: Art. 21 EuErbVO; § 1371 I BGB
(habitual residence; substitution of the „matrimonial property regime“ according to § 1371 I BGB)
Author's note:
The intention to return to the home country and the realisation of this intention do not in themselves prevent the assumption of a new habitual residence (Art. 21 para. 1 EU Succession Regulation) if the deceased has long-standing professional and social ties at the actual place of residence.
The term „matrimonial property regime“ in Section 1371 I BGB cannot be substituted. An adjustment of the inheritance share according to IPR principles is also out of the question if the matrimonial property regime does not contain any provisions on increasing the inheritance shares of spouses and the matrimonial property regime does not provide for the increase due to non-existent elements of the offence.
For the reasons:
Habitual residence pursuant to Art. 21 para. 1 EU Succession Regulation
„The term „habitual residence of the deceased at the time of death“ within the meaning of the EU Succession Regulation has not been defined by the Regulation in any provision; however, recitals 23 and 24 contain useful information in this regard (see ECJ, judgment of 16 July 2020, Case C-80/19, para. 37).
According to recital 23 in the preamble to that regulation, it is for the authority dealing with the succession to determine the habitual residence of the deceased, taking into account both the fact that the general connecting factor is the habitual residence of the deceased at the time of death and all the circumstances of the deceased's life in the years preceding his death and at the time of his death, and taking into account all relevant facts, in particular the duration and regularity of the deceased's residence in the State concerned and the circumstances and reasons relating thereto. The habitual residence thus determined should show a particularly close and firm link between the estate and the State concerned. In this respect, the 24th recital of the Regulation lists various cases in which it may prove complex to determine habitual residence. 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 could be a particular factor in the overall assessment of all the factual circumstances, as stated in the last sentence of that recital, if the deceased moved to another State to work there for professional or economic reasons, possibly for a long period of time, but maintained a close and stable link with his State of origin.
According to the case law of the ECJ, this means that the habitual residence of the deceased must be determined by the authorities and courts dealing with the succession on the basis of an overall assessment of the circumstances of each individual case (see ECJ, judgment of 16 July 2020, Case C-80/19, para. 40).
A habitual residence is defined as the place of The centre of a person's existence determined in the overall assessment should be understood in terms of the focus of their family, social and professional relationships (see Palandt/Thorn, EuErbVO, 2020, Art. 21 para. 6). This requires an overall assessment of the circumstances of the testator's life in the years prior to his death and at the time of his death under Consideration of all relevant facts, in particular the duration and regularity of the deceased's residence in the second state (see OLG Hamm, decision of 17 December 2019, 15 W 488/17, BeckRS 2019, 44890, para. 4). In the context of this overall assessment the direction of the testator's will must also be taken into account (see OLG Hamm, decision of 2 January 2018, 10 W 35/17, ZEV 2018, 343, juris, marginal no. 7). However, such subjective elements are not in themselves suitable for establishing habitual residence, contrary to the objective organisation of the other living conditions (see OLG Hamm, decision of 2 January 2018, 10 W 34/17, ZEV 2018, 343, juris, para. 7, decision of 17 December 2019, 15 W 488/17, BeckRS 2019, 44890, para. 4). A minimum period of actual residence in the third country is stipulated by Art. 21 of the EU Succession Regulation for the establishment of habitual residence or the determination of the will to remain (animus manendi) is not required. A stay of just a few weeks may be sufficient to establish a habitual residence within the meaning of the Regulation (see OLG Celle, decision of 12 September 2019 - 6 AR 1/19, FGPrax 2019, 217). This is because the definition of residence in the regulation includes only a qualitative, but not a quantitative time element (see Süß, Erbrecht in Europa, 2015, § 2 para. 17). As a result, the lower weight of the simple will to remain due to a continuing will to return can also be outweighed in the overall assessment by the longer duration of residence in the foreign state and the deceased's roots there, despite the continued will to return (see Palandt/Thorn, BGB, 2020, Art. 21 EuErbVO para. 6).“
On the type of referral (material standard referral / overall referral)
„The reference to Chinese law resulting from Art. 21 in conjunction with Art. Art. 20 EuErbVO is, as can be seen indirectly from the reference to Chinese law made by The principle of irrelevance of a re-referral or further referral laid down in Article 34(2) of the EU Succession Regulation must be interpreted as a reference to a substantive standard (see Hüßtege/Mansel/Looschelders, 2019, EuErbVO, para. 17).
According to Art. 10 of the Inheritance Law of the People's Republic of China of 10 April 1985 (hereinafter: ErbG, cited in Ferid/Firsching/v. Saenger, Internationales Erbrecht, as of 18 May 2004), the estate is inherited in the first order by the spouse, the descendants and the parents of the respective deceased, whereby according to Art. 13 para. 1 ErbG heirs of the same order inherit in principle in equal shares (see Eberl-Borges, ErbR 2013, 15, 16 f.). There is no provision for an increase in the inheritance share of the surviving spouse depending on the matrimonial property regime (see Eberl-Borges, ErbR 2013, 15, 24).
Pursuant to Section 10 No. 1 ErbG, the parents, spouse and children of the respective testator are appointed as co-heirs with equal rights in accordance with Section 13 para. 3 ErbG at the first level, which takes precedence over the other levels.
According to the written information obtained from the deceased's siblings as respondents in the appeal proceedings, the deceased's parents had already been deceased for some time at the time of the inheritance. Consequently, applying Chinese inheritance law, party 2) as the deceased's surviving wife and party 1) as the deceased's descendant became heirs in equal shares pursuant to §§ 10 no. 1, 13 para. 1 ErbG and thus ½ each as co-heirs by virtue of intestate succession under the inheritance law of the People's Republic of China.
The main application of the parties to 1) for the issue of a certificate of inheritance, according to which the deceased was inherited by the party to 1) in application of German inheritance law with an inheritance share of ¾, limited to the items of the estate located in Germany, is also not successful in this respect, in that the heir in Germany is not entitled to an inheritance share of ¾. Art. 21, 20 EuErbVO in conjunction with Art. 34 para. 2 EuErbVO. Art. 34 para. 2 of the EU Succession Regulation provides for the principle of referral to the law of succession referred to in Art. 21 para. 1 of the EU Succession Regulation to be breached under the conditions set out in Art. 34 para. 1 of the EU Succession Regulation.
This is because the referral back to the German inheritance law under consideration here, as stipulated by Art. 34 para. 1 of the EU Succession Regulation, only concerns the immovable domestic assets by way of the international private law division of the estate, but not the movable estate of the deceased located in Germany. A certificate of inheritance with the content that the party to 1) has been appointed co-heiress to ¾ in application of German inheritance law would only come into consideration if the domestic estate of the deceased had been limited exclusively to his immovable real estate assets and there had been no domestic movable estate for which succession under the inheritance law of the People's Republic of China, which is applicable pursuant to Art. 21 para. 1 EU Succession Regulation, could be considered.
In this respect, however, it is certain and is also not questioned by the party re 1) that at the time of his death the testator also had accounts with commercial banks domiciled in Germany with credit balances and thus a domestic movable estate subject to succession under Chinese inheritance law.
The probate court therefore rightly rejected the main application of the parties to 1).“
For substitution
„The application of Section 1371 (1) BGB is not ruled out for reasons of conflict of laws. This is because Section 1371 para. 1 BGB is a provision relating to succession by reason of death within the meaning of Art. 1 para. 1 EU Succession Regulation (see ECJ NJW 2018, 1377). This qualification must therefore also be followed if a referral of the foreign conflict of laws pursuant to Art. 34 para. 1 a) prescribes a qualification according to the lex fori, as is the case here pursuant to Section 9 IPRG. This is because the property law qualification of § 1371 para. 1 BGB according to autonomous German conflict of laws (see BGHZ 205, 289) is also superseded in this respect by the primacy of the Community law standard of Art. 1 para. 1 EuErbVO.
However, the factual requirements of § 1371 Para. 1 BGB are not fulfilled.
The prerequisite for increasing the surviving spouse's inheritance share pursuant to Section 1931 para. 3 in conjunction with Section 1371 para. § Section 1371 para. 1 sentence 1 BGB is that at the time of the deceased's death, the spouses lived under the statutory matrimonial property regime of the community of accrued gains under German law in accordance with Sections 1362 et seq. BGB at the time of the deceased's death.
However, a community of accrued gains within the meaning of § 1371 BGB did not exist between the party to 2) and the testator. This is because the testator's marriage was not subject to German matrimonial property law, but to the matrimonial property law of the People's Republic of China.
Pursuant to Art. 1 para. 2 d) of the EU Succession Regulation, questions of matrimonial property law are excluded from the scope of the Regulation. It therefore also constitutes a preliminary question under international private law of the provisions of German substantive inheritance law called upon to apply by Art. 21, 35 para. 2 EuErbVO, whether the marriage of the deceased with the party to 2) was subject to the matrimonial property regime of the community of accrued gains pursuant to §§ 1362 et seq. BGB.
The matrimonial property regime as a preliminary question is to be applied independently, i.e. in accordance with the international private law provisions of the German conflict of laws rules, which are applied both as lex causae and as lex fori (see MüKo/v. Hein, 2020, Einl IPR Rn. 181).“ […]
„With this content, the statutory matrimonial property regime of §§ 17 et seq. EheG (German Matrimonial Property Act), which is decisive for the matrimonial property relations of the deceased to the parties to the second marriage, cannot be equated with the matrimonial property regime of the community of accrued gains under German matrimonial property law presupposed by § 1371 BGB by way of international private law substitution, i.e. by equating the statutory matrimonial property regime of Chinese matrimonial property law within the framework of § 1371 para. 1 BGB with the domestic matrimonial property regime of the community of accrued gains presupposed therein by way of interpretation.
Because The possibility of substituting the German legal concept with the foreign legal phenomenon depends on whether and to what extent there is a correspondence in the function of the two. This requires comparability of the essential features that characterise the norm (see BGHZ 205, 289, juris, para. 33).
According to these principles, the statutory matrimonial property regime under Chinese inheritance law is not sufficiently similar to a community of accrued gains under German law to justify the application of §§ 1931 para. 3, 1371 para. 1 BGB to the inheritance law of the parties to 1).
It is recognised in case law that a foreign matrimonial property regime, which from a German perspective is to be regarded as a community of property, is not eligible for the application of section 1371 BGB by way of international private law substitution (cf. e.g. OLG Hamm, decision of 21 March 2019 - 10 W 31/17, ZEV 2019, 343, juris, para. 32, similarly OLG Frankfurt, decision of 17 November 2016 - 20 W 103/15, ZEV 2017, 1169, juris, para. 59 f. ). This is also followed by the majority of literature (see e.g. Dutta/Weber/Fornasier, EuErbVO, 2016, Art. 63 EuErbVO para. 32).
The view that the application of Section 1371 BGB by way of international private law substitution should also be considered for matrimonial property regimes under foreign law that are to be regarded as community of property from a German perspective is only occasionally advocated (see, for example, Sakka, MittBayNot 2018, 4, 7). It is also not convincing on the merits.
This is because the question of whether the foreign matrimonial property law to be applied justifies an increase in the inheritance share in accordance with § 1371 Para. 1 BGB must correctly be based on whether the foreign law with regard to the equalisation mechanism in the event of the death of a spouse is functionally equivalent to the equalisation mechanism of the community of accrued gains under German matrimonial property law (see Palandt/Weidlich, BGB, § 1931 BGB marginal no. 10). However, such functional comparability cannot be assumed simply because the foreign matrimonial property regime recognises any form of economic participation by the surviving spouse in the jointly generated assets in the event of the death of one of the two spouses. Rather, it is correct to require that this is an equalisation provision that is functionally comparable to Section 1371 (1) BGB in the context of the termination of the marriage by death (see Süß DNotZ 2018, 742, 752). This is not the case if the surviving spouse already participates in the assets acquired during the marriage in rem during the deceased's lifetime within the framework of a matrimonial property regime under foreign law, which from a German perspective can be classified as a community of accrued gains, instead of being referred to a claim for equalisation under the law of obligations, which only arises when the marriage ends, in a manner comparable to the community of accrued gains (cf. Dutta/Weber/Fornasier, Internationales Erbrecht, 2016, Art. 63 EuErbVO para. 32, Weber, NJW 2018, 1356, 1357f.).
It does not lead to a different judgement that, according to the case law of the Federal Court of Justice, in order to assess the question of the conditions under which a spouse's inheritance share granted by the foreign law may be regarded as a „statutory inheritance share“ within the meaning of Section 1371 para. 1 BGB, it is sufficient that the foreign law provides for a participation in rem in the estate in the sense of a „genuine share“, even if it only arises on the basis of inheritance law (see decision of 13 May 2015 - IV ZB 30/14, NJW 2015, 2185, juris, para. 32 f.). This only concerns the legal consequences of this provision, i.e. the question of whether the surviving spouse of a German community of accrued gains should also benefit from the increase in the inheritance share provided for in Section 1371 para. 1 BGB if foreign inheritance law is applied. This is a different question, namely whether the foreign matrimonial property regime can be regarded as a functionally comparable matrimonial property regime to the domestic community of accrued gains in terms of the factual requirements of § 1371 para. 1 BGB. However, this functional comparability is contradicted by the fact that the statutory matrimonial property regime under Chinese law in accordance with § 26 ErbG also provides for an in rem settlement of the spouses“ marital property in the event of death and does not provide for a purely contractual equalisation claim or its replacement by an increased inheritance share, as is characteristic of the inheritance law settlement of the domestic community of accrued gains." [...]
For customisation
„An increase in the inheritance share of the parties to 2) for the domestic immovable assets of the deceased does not result from the aspect of an adjustment under private international law either. For the result of the application of the rules of private international law only needs to be adapted to the circumstances of the specific individual case by way of harmonisation if the interaction of the application of the provisions of German law by subsuming a phenomenon of foreign law under the legal concept of the German legal norm in its interaction with the other provisions of foreign substantive law applicable in the individual case produces an overall contradictory or inconsistent result (see BGHZ 205, 289, juris, para. 34).
Such an adjustment requirement may also exist in cases where the The application of different property and inheritance laws leads to an unfair result because it places the surviving spouse in a worse position than he or she would be in if each of the legal systems involved were applied in full. In such a case, the adjustment must generally be made by ensuring that the surviving spouse receives at least what he or she would be entitled to under each of the two laws considered separately if both his or her inheritance law and his or her matrimonial property law were applied (see Palandt/Thorn, 2017, Art. 15 EGBGB para. 27). However, these requirements are not met either.
Admittedly, if the inheritance law of the People's Republic of China were also to apply to the deceased's domestic immovable property, party 2) would be entitled to a share in the value of ½ of the deceased's property in Germany to which she is entitled under this inheritance law, whereas if German inheritance law were to apply, she would only be entitled to the share of ¼ provided for in Section 1931 (1) BGB, if the statutory matrimonial property regime of Chinese matrimonial property law is not equated with either a community of accrued gains or a separation of property. However, this is not a nonsensical or contradictory result because, even under German inheritance law, the party to 2) would only be entitled to an inheritance share of ¼ if the spouses had lived under the matrimonial property regime of a community of accrued gains under German law.
An adjustment of the inheritance quota of the surviving spouse, who had lived in a community of accrued gains under foreign law as the statutory matrimonial property regime, to the total quota of ½ provided for the statutory matrimonial property regime of the domestic community of accrued gains pursuant to §§ 1931 Para. 1, Para. 3, 1371 Para. 1 of the German Civil Code (BGB) is not possible, in particular because such an increase in the inheritance quota of the surviving spouse has also been excluded by the German legislator for the community of accrued gains under domestic law.
When introducing the community of accrued gains as a statutory matrimonial property regime in 1958, the legislator did, on the one hand, stipulate in Art. 8 I 7 of the transitional provisions of the GleichberG that the provisions on the community of accrued gains should continue to apply to the matrimonial property regime of the spouses even after the introduction of the community of accrued gains as a statutory matrimonial property regime, provided that the spouses had already chosen this matrimonial property regime before the GleichberG came into force. Nevertheless, it did not take this as an opportunity to extend the scope of application of § 1371 BGB, which was created with the GleichberG, to the community of accrued gains that continued to exist as the old legal matrimonial property regime pursuant to Art. 8 I 7 GleichberG. If, in the event of the dissolution of a domestic community of accrued gains, the surviving spouse is entitled to the rights provided for in § 1371 Para. 1 BGB in conjunction with § 1931 Para. 3 BGB. § However, if the surviving spouse is not entitled to an increase in the inheritance share provided for in Section 1371 para. 1 BGB in conjunction with Section 1931 para. 3 BGB, but must be satisfied with the inheritance share of ¼ in accordance with Section 1931 para. 1 BGB and the result of the division of the community of property under matrimonial property law, there is also no reason to place the surviving spouse of a foreign community of property in a better position by setting their inheritance share to at least ½ of the estate by way of an international private law adjustment.
Nor can it be argued against this that the interests of the surviving wife should always take precedence under private international law and therefore the most favourable law of succession and matrimonial property regime for the wife must always be applied (for example, MüKo/Siehr, 2015, Art. 15 EGBGB para. 105 with further references). This is because the sole purpose of the adjustment under private international law is to correct completely inequitable results that arise from a connection of the property law statute that deviates from the law of succession. It is therefore only necessary where a matrimonial property regime that gives nothing to the surviving spouse because he or she is compensated under inheritance law coincides with another inheritance regime that does not provide for an inheritance share for the wife because the spouse concerned has already been compensated under matrimonial property law (see Staudinger/Mankowski, 2003, Art. 15 EGBGB , para. 379; MüKo/Leipold, 2020, § 1371 BGB para. 40). However, such a case constellation does not exist here.
It is true that in the case of the combined application of German inheritance law and Chinese matrimonial property law, the party to the second claimant is deprived of a share in the value of the house property acquired by the deceased prior to the marriage to the extent of the ¼ share to which she would be entitled in the case of a uniform application of German inheritance and matrimonial property law within the framework of the lump-sum realisation of the equalisation of accrued gains through the increase in the inheritance quota regulated by § 1371 Para. 1 BGB. However, the increase in the inheritance quota stipulated by § 1371 Para. 1 BGB is itself a flat-rate regulation created by the legislator solely for reasons of practicality. The domestic immovable estate, for which alone an international private law adjustment could be considered here, consists here - as far as can be seen - solely of the house property acquired in 2007 and thus well before the marriage.
However, the fact that the increase in the inheritance share pursuant to Section 1371 para. 1, 2nd half of the BGB does not require a gain, but also intervenes where the estate is made up to a considerable extent of pre-marital acquisition otherwise excluded from the equalisation of gains, is itself widely regarded as inequitable in such cases (cf. Soergel/Grziwotz, BGB, 2012, Section 1371 BGB marginal no. 3 mwN; Palandt/Weidlich, BGB, 2020, Section 1371 BGB marginal no. 3 ).
For this reason, too, there is no reason to reduce the share of ¾ to which the party to 1) is entitled pursuant to §§ 1924 para. 1, 1931 para. 1 BGB by way of international private law adjustment to the hypothetical ½ share that would have resulted if the party to 2) had lived with the testator under the statutory matrimonial property regime of domestic community of accrued gains.
As a result, the facts necessary for the issuance of a certificate of inheritance must be deemed established, with which the party to 1) is designated as co-heiress to ½ of the deceased's domestic estate for the movable estate in application of the inheritance law of the People's Republic of China on the basis of statutory succession and as co-heiress to ¾ of the immovable estate in application of German inheritance law on the basis of remittal of the law of the People's Republic of China on the basis of statutory succession.
The certificates of inheritance to be issued separately for both participating estates due to the division of the estate may be issued in a single document as a double certificate of inheritance for reasons of simplification (see BeckOKGFamFG/Schlögel, 2020, Section 352c FamFG para. 9; MüKo/Grziwotz, 2020, Section 352c BGB para. 26).“