Applicable law under the EuErbVO
Which law of succession isapplicable is determined by the rules of international succession law. Before the applicability of the European Succession Regulation (EuErbVO), only the international private law of the nation states and international agreements applied. Under the German rules, the applicable law of succession was determined by the nationality of thedeceased, Art. 25 para. 1 EGBGB (old version). For inheritance cases from the age of 17. August 2015, on the other hand, the European Inheritance Regulation applies. The Regulation is intended to improvethe handling of successions with a cross-border element in the European Union. It applies to all Member States with the exception of Denmark, Ireland and the United Kingdom.
What are the criteria for determining the applicable law?
According to Article 21 (1) of the TEUPER, the entire succession of a death is governed by the law of the Member State in which the deceased had his habitual residence at the time of his death. 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 EuErbVO, it is crucial to determine the actual life situation of the data subject taking into account all the circumstances of the individual case. The notion of habitual abode requires a certain physical presence in aplace and will to abide. Criteria such as social and cultural integration may be used as a complement if it is not possible to make a precise allocation to a country. However, they are not mandatory criteria.
Applicable law in relation to third countries
As already explained, the EuErbVO applies to all EU member states with the exception of Great-Britain, Ireland and Denmark. However, Article 20 of the Regulation provides for universal applicability of the Regulation's provisions to the participating Member States, also in relation to third countries. If the deceased has his habitual residence at the time of his death, for example in the USA, the EuErbVO stipulates that the law of the USA is to be applied for the member states. However, even if the law of succession of a third State is applicable, courts of a Member State may have jurisdiction in matters of succession if the deceased had the nationality of that Member State at the time of his death or if he had his habitual residence in that Member State, provided that no more than five years elapsed between the change of residence and the bringing of the matter before the court, Article 10 (1) of the Regulation.
Moreover, the jurisdiction of the courts of a Member State may be derived from the provisions of Art. 10 (2) of the Regulation by the fact that all or part of the assets of the estate 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 purchased property located in Germany. He dies and leaves a will, valid under the respective state law, in which he names his spouse as sole heir. He left no children.
According to Article 20 (1) in conjunction with Article 21 (1) of EuErbVO, the US inheritance law is applicable. However, the German courts are also subject to Article 10 (1) lit. a) competent authority, since the deceased was a German national. Even if the deceased had lost German nationality at the time of his death, the German courts would have jurisdiction with regard to the property situated in Germany, Article 10 (2) of the EuErbVO. The estate would still be treated according to US law of succession. The German court would thus have to base its decisions on American inheritance law.
