Inheritances involving people who die in countries other than their own, with heirs who reside abroad or with assets located in different countries are becoming more and more frequent, generating international, legal relationships.
International Inheritance Lawyer
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Written by María Serra
Lawyer and mediator
What are the legal challenges inherent to international inheritances?
In these cases, questions regarding the applicable law to the succession and the validity of a will made under a law other than that of the nationality of the deceased have to be resolved in the first instance. Therefore, we will have to resort to rules of private international law to resolve conflicts arising from international inheritances. The main relevant international legislation is the European Succession Regulation which applies to international successions occurring in a territory of the European Union regardless of whether or not the deceased is a national of a European Union territory.
What does the European Succession Regulation address and what is its scope?
This regulation was adopted by RD 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. It entered into force on the 17th of August 2015, thus applying to successions occurring on or after that date.
International successions occurring prior to its entry into force are governed by the rules of private international law found in articles 8 to 12 of the Spanish Civil Code - hereinafter, CCSp - which establish, incidentally, a different criterion to be taken into account regarding the law applicable to the succession, being of preponderant application that of the nationality of the deceased, at the time of death (article 9.8 CCSp).
The Regulation applies to the member states of the European Union, except for the three European countries that did not subscribe to it at the time: United Kingdom, Ireland and Denmark, although, based on the principle of universality, it can also be applied when the succession involves the laws of states that are not part of it, either because they have not subscribed to it or because they do not belong to the EU. Therefore, the law designated by the Regulation will be applied even if it is not the law of a member state.
How is the applicable law in an international succession determined?
The Regulation basically contains the criteria to be taken into account in order to determine the law applicable to the succession.
The succession is opened upon the death of the deceased.
Firstly, the applicable law will be the law chosen by the deceased in his will. Secondly, and in the absence of such choice, the law of the habitual residence of the deceased at the time of his death will be applicable, and exceptionally, the third criterion will be the law of the country where the deceased had the closest ties.
What is "professio iuris" and what are its limitations?
The possibility of choosing the law applicable to one's own succession, the so-called professio iuris, consists of the ability of the deceased to designate the law of the State whose nationality he/she possesses at the time of making the choice or at the time of death.
It is necessary to take into account that such possibility of choice is limited to the international scope, meaning that the choice made by a Spaniard in favor of his own nationality will always be understood to be made in favour of the law corresponding to his civil domicile, without being able to choose a different one.
Thus, a Spaniard residing in Barcelona who intends to acquire German nationality may, at the time of making a will, opt for Spanish law (and with respect to this, for the law of his Catalan civil domicile) or for German law. If he has opted for the Spanish law, this one will be applied to him, independently of where he resides. If he/she opts for the German law, the choice will only be valid if he/she has German nationality when he/she dies.
How are special situations such as commorience and renvoi of legal norms handled?
For cases of commorience, or simultaneous death, the CCSp presumes that the two persons have died at the same time, and therefore, there is no transfer of rights between them. The EU Succession Regulation opts for an almost identical criterion since it establishes that if two or more persons whose succession is governed by different laws (for example, Spanish and German) die in circumstances that make it impossible to know the order in which their death occurred, and said laws regulate the situation differently or not at all, none of the deceased persons will have any right to the succession of the other, i.e., there is no transfer of rights either.
The renvoi in the EU Succession Regulation takes place when in a given matter the conflict rule of one country considers that the applicable law is that of another country. Thus, for example, consider a Spaniard who resides in Cuba and dies in Cuba having a house in France: if the deceased did not make professio iuris, his succession will be governed by the law of the place of his residence, which is Cuba. Therefore, one will have to resort to what the rule of private international law of Cuba says, which establishes that the succession is governed by the law of the nationality of the deceased at the time of the death. As such, a first degree resubmission has taken place, since the law that will govern the succession will be the Spanish law in the end.
How does plurilegality in Spain affect the succession process?
Spain is a plurilegislative country (there are several national laws), as there are 6 Autonomous Communities with their own inheritance law: Aragon, Catalonia, Galicia, Balearic Islands, Navarre and the Basque Country. The rule of domestic law that regulates conflicts of laws is the CCSp, article 9.8, which states that the personal law of the deceased at the time of death is the one that will govern his succession. And in order to determine the personal law, we have to take into account the civil neighbourliness, the criteria of attribution which are regulated in articles 13 to 16 of the CCSp.
In iusfamilia, we advise clients on all types of family law proceedings. We prevent conflicts and defend your rights. If you need advice, contact our international inheritance lawyers:
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