Drastic changes in international inheritance law

In Germany, only a third of the population grant any kind of will or heritance contract. It is now even more important to think in advance of granting last wishes, especially for people who do not have their last residence in Germany. This is equally true for Spaniards living in Germany.

This is because the EU legislator has approved new rules that will soon apply and constitute radical changes in inheritance law.  Until now, Spanish citizens could assume that they inherited as established by Spanish law, regardless of where they had their last domicile or habitual residence. Only the nationality of the testator was determinative.

The European Regulation on Inheritance modifies the connection point in the international scenario. It shall apply, starting on 17 August 2015, principally in all inheritance matters. From that moment, the governing legal system will be the one where the testator had his last habitual residence. In such case, the determination of the applicable law can be more complicated because it will always be uncertain where a person with more than one home had their last habitual residence. There will be many more surprises as most of those affected are not familiar with foreign inheritance laws. There are many differences within Europe and the rest of the world, especially in matrimonial and legitimacy law: the Romanesque tradition of some countries (France, Italy, Spain, Belgium, etc.), for example, forbids inheritance contracts; it part, this also applies to joint wills of spouses.

However, there is a way to avoid this new legal situation: the express choice of applicable law. For this, the granting of a last will and testament is required, which must be notarized for legal certainty.  Nevertheless, the testator can only choose the law of the country of his or her nationality. In any case, the testator should ensure the will is an area that the testator is most familiar with in relation to the legal consequences. Depending on the individual circumstances of the testator (marital status, children, habitual residence, and location of assets), the applicability of foreign law may, however, be more advantageous: for example, if the testator wants to use the rules of law on legitimacy that he or she views as more favourable (e.g. regarding the field of Anglo—American Law). For that matter as well as in relation to the burden of inheritance tax, individual counselling is essential.

From the German point of view, the EU regulations governing inheritance will have a global effect; this means that the principle that the law of the testator’s last residence is applicable to inheritance also applies if the last habitual residence of the testator is outside the European Union (e.g. in the USA). However, non-European inheritance law can refer back to the law of the testator’s nationality. This can only be determined through an individual examination in each case. Unfortunately, this situation can occur within Europe itself since three countries (United Kingdom, Ireland and Denmark), for the time being, will not apply the new regulation.

Dr. Thomas Rinne & Karl H. Lincke

This article is not considered as legal advice

Karl H. Lincke

As an Abogado & Rechtsanwalt, Karl H. Lincke is a Partner at Mariscal Abogados and specialises in M&A, Company law, TMT law and Real Estate law. Working languages: Spanish, German and English. For any further enquiries please Contact us