Which inheritance law is applicable is determined by the rules of international inheritance law. Before the applicability of the European Succession Regulation (EuErbVO), only the private international law of the nation states and international treaties applied. According to the German regulations, the applicable law of succession was based on the nationality of the deceased, Art. 25 para. 1 EGBGB (old version).
However, the European Succession Regulation applies to inheritance cases from 17 August 2015. The regulation is intended to improve the handling of inheritance cases with a foreign connection in the European Union. It applies to all member states with the exception of Denmark, Ireland and Great Britain.
What does the EU Succession Regulation not regulate?
The European Succession Regulation has no influence on, among other things:
- Company law issues (Article 1(2)(h) of the Regulation),
- matrimonial property regimes and maintenance obligations (Article 1(2)(d) and (e) of the EU Succession Regulation) or
- tax law issues, Article 1 (1) sentence 2 of the EU Succession Regulation.
Other areas excluded from the scope of the Regulation are listed in Article 1(2) of the Regulation.
What criteria are used to determine the applicable law?
Under Article 21(1) of the Regulation, all successions are governed by the law of the Member State in which the deceased had his or her domicile at the time of death. habitual residence had.
The concept of habitual residence is not precisely defined. Therefore, case law and literature must interpret the term. Taking into account recitals 23 and 24 of the EU Succession Regulation, the decisive factor is the actual centre of life of the person concerned, which must be determined taking into account all circumstances of the individual case.
The concept of habitual residence requires a certain physicalPresence in one place. Criteria such as the Social and cultural integration can be used as a supplement if a precise allocation to a country cannot be made. However, they are not mandatory criteria.
It is also undisputed that a Willingness to stay required. The testator must be consciously and intentionally present in a place. A transfer against a person's will cannot, in principle, change their habitual residence.
Whether the will to reside requires legal capacity is questionable. The OLG Munich in a decision requires that the testator must have legal capacity in legal transactions. In practical terms, this would mean that the testator who lacks legal capacity cannot establish a new residence. For example, a minor testator would not be able to establish their own habitual residence. In a decision of the ECJ on the Brussels IIa Regulation However, the court argued that even an infant - represented by its mother - could transfer its habitual residence to another country. Although it should be emphasised that the decision was made on a different regulation, European law is governed by the principle of uniformity and effective enforcement of the legal system. It can therefore be assumed that a term is not interpreted completely differently in different regulations. This suggests that legal representatives can determine the habitual residence of legally incapacitated persons.
Contrary to Article 21(1) of the EU Succession Regulation, paragraph 2 offers a correction option. If the deceased had a closer connection to a state other than the one in which he or she had his or her habitual residence, the succession law of that state may be applied.
Possible applications for this clause are, for example, so-called „Mallorca pensioner“ or Cases of abuse by the representative of a legally incompetent testator. If, taking into account special circumstances, such as the only contact with relatives in another country or the removal of the deceased for abusive purposes, a closer connection to another country is established, the inheritance law of that country may be applied.
Choice of law
The testator is advised to plan their estate independently. This does not only include instructions relating to the estate itself. Rather, a testator living in a country other than their home country should consider and, if necessary, have it checked whether they wish to make a Choice of law should meet. In accordance with the first subparagraph of Article 22(1) of the Regulation, he may choose the law of succession of the State of which he is a national. If he has two or more nationalities at the time of his death or choice of law, he may choose between them, second subparagraph.
In accordance with paragraph 2, the choice of law can be made in isolation or combined with a disposition of property upon death. Under certain circumstances, a Choice of law through conclusive (implied) behaviour be assumed. A choice of law through conclusive behaviour has the OLG Cologne in one case in which a Romanian citizen, who also had German nationality and was habitually resident in Germany, had drawn up a will in Romania before a Romanian notary in the Romanian language with reference to the provisions of Romanian law. In its grounds for judgement, the Higher Regional Court of Cologne referred to recital 39 of the EU Succession Regulation. According to this, it is an indication of a choice of law if the testator has made reference to specific provisions of the law of the state to which he belongs. This was the case in the present case, whereby the Higher Regional Court of Cologne assumed a choice of law in favour of Romanian law.
Applicable law in relation to third countries
As already explained, the EU Succession Regulation applies to all EU member states with the exception of the UK, Ireland and Denmark. However, Article 20 of the EU Succession Regulation makes the provisions of the Regulation universally applicable to the participating member states, including in relation to third countries. For example, if the deceased had their habitual residence in the USA at the time of their death, the EU Succession Regulation stipulates that the law of the USA applies to the member states.
However, even if the succession law of a third country is applicable, the courts of a member state may have jurisdiction to rule on succession matters if
- the deceased was a national of that Member State at the time of death, or
- he or she had his or her habitual residence in the Member State concerned, provided that no more than five years have elapsed between the change of residence and the court being seised, Article 10(1) of the Regulation.
In addition, the jurisdiction of the courts of a Member State pursuant to Art. 10 para. 2 of the EU Succession Regulation may arise from the fact that all or part of the estate assets are located in that Member State.
Example: A German citizen lives in the USA and has his habitual residence there. Before moving to the USA 10 years ago, he acquired a property located in Germany. He dies and leaves a will, valid according to the respective federal law, in which he appoints his spouse as his sole heir. He left no children.
According to Article 20(1) in conjunction with Article 21(1) of the EU Succession Regulation, the law of succession of the USA is applicable. However, the German courts also have jurisdiction under Article 10(1)(a), as the deceased was a German national. Even if the deceased had renounced German nationality at the time of his death, the German courts would have jurisdiction with regard to the property located in Germany, Article 10(2) of the Succession Regulation. The estate would nevertheless have to be treated in accordance with US inheritance law. The German court would therefore have to base its decisions on US inheritance law.
Applicable law in relation to multi-jurisdictional states
Multi-law states in the context of the EU Succession Regulation are countries in which there are autonomous territories that have enacted their own succession laws. Examples of such multi-jurisdiction states are USA or Spain. In Spain, Catalonia, the Basque Country, Galicia, Navarre, the Balearic Islands and Aragon have their own inheritance rights (so-called Foral rights).
Article 36(1) of the Regulation stipulates that the internal law of the state concerned must also be observed. The applicable succession law is therefore determined by the state to which the Regulation refers. If there are no such internal referral provisions in the multijurisdictional state concerned, the allocation is determined in accordance with the special provisions of Article 36(2) of the Regulation.