Thus far, the estate of a deceased person with interests in several European countries is governed by the law of succession of each of the countries in question. However, it is possible that in some instances, as is the case in Spain, the internal law of each country allows for the aggregate application of several laws.
However, the European Parliament Regulation of 4 July 2012 on estates of persons with interests, property, and descendants in several countries provides that such estates will be subject to the enforcement of this system of cumulative laws. Indeed, for those who die as of 17 August 2015, European law will allow the governing of an entire estate globally, standardize the succession rules in the European Union, and allow a settlement of the succession in the fastest and most efficient manner.
In terms of the transitional provisions of Article 83 of the Regulation, they provide a double “safeguard clause” to acts dating before 17 August 2015, when the death occurred after that date. The rule contains a transitional provision on the choice of law. Thus, a French citizen residing in Spain may, as soon as today, choose French law to govern the succession of his estate, even if French law does not currently allow such a choice. The Regulation also has a transitional arrangement concerning the provisions on the cause of death. For a disposition of property upon death made before 17 August 2015 to be valid, it must meet the requirements of the applicable law determined by the Regulation.
The jurisdiction of the Spanish courts
In Spain, the notary in charge of the estate applies only one law for all the assets that constitute the inheritance: the law of the country of which the decedent was a citizen or the governing law of the last European country in which the decedent was domiciled. This was particularly reflected in the European Regulation, but it now offers every citizen the opportunity to choose the legislation that they wish to govern their successions.
According to Article 21, 1) of the European Regulation, the Spanish courts will have jurisdiction if the decedent was residing in Spain at the time of his or her death. In such case, only Spanish law will be applicable to the entire estate.
Article 21, 2) of the European Regulation provides an exception to this general principle. In the event that the decedent had established his or her main domicile in a country other than Spain at the time of his or her death, it will still be possible to confer jurisdiction to Spanish courts to govern the succession if the decedent ” kept substantial ties and relationships” with Spain. However, the exact nature of these ties and relationships must be determined. They could be the majority of property assets or a substantial part of the decedent’s family that reside in Spain, currently or at the time when the decedent resided on Spanish territory.
Finally, in the event that neither the general principle nor its exception explicitly link the succession to Spanish law, European citizens of Spanish nationality have one option left: choose the applicable law. To be possible, the choice of Spanish law must be expressly and explicitly formulated in a declaration in the form of a post-mortem disposition or in the will of the decedent.
It is also important to note that for the sake of efficiency and time management, the Regulation stipulates that the acts issued and decisions made in one of the Member States may be directly applied in any other Member State. Indeed, Member States have an obligation to recognize the decisions of courts of another Member State, as provided for in Article 41 of the Regulation (“in no case shall the decision in a Member State be subject to review on the merits”).
Finally, the Regulation introduces, in Articles 62 to 73, a new tool to use in cross-border succession: the European Certificate of Succession. This certificate allows the heirs, spouses, or other beneficiaries of an estate to provide proof of their capacity as heir or beneficiary in another Member State in order to assert their heirship in all of the countries of the European Union.
Lucie Robin & Nicolás Melchior
This article is not considered as legal advice