European inheritance regulation

European inheritance regulation

On August 17, 2015 entered into force EU regulation 650/2012, of 4 July, known as the European Regulation for successions, for the application of international law in the case of succession because of death in which concurs an international element, such as the deceased resided or had some good in a State other than their origin.

This circumstance is highly prevalent today for example in Spain live about five million foreigners of which approximately two million eight hundred thousand are citizens in the regime of free movement in the European Union, the most numerous from the United Kingdom.

The Regulation introduces profound changes in national systems of private international succession law. In the case of Spain, the nationality of the deceased gives way to the place of habitual residence as the main criteria for determining the applicable law and allows the choice of applicable law (limited to national law or residency place law). 

Other countries such as France or Belgium, they also apply a single law to the whole succession, when they used to distinguish between the succession of immovable property, which was governed by the law of the state in which the property was situated, and that of movable property, which was governed by the national law of the deceased or by the state of their last domicile.

As regards the scope of European Succession Regulation must take into account that has been adopted by all members except the UK, Ireland and Denmark. But its rules are universal, not only for EU citizens but also for those of any other state in the world.  Consequently, notaries and judges of the member states of the European Union will apply the same rules to the succession of a Spanish, a German, an Argentine and a Briton. For example, the inheritance of a British citizen residing in Spain will be subject to the legal system established in Spanish law that reserves a portion of the state to children, a provision unrelated to the legal tradition of the United Kingdom which is based on the absolute freedom of any person to dispose of his property to his death as you see fit.

The residence criteria followed by the European Regulation will determine a lower application of foreign law. This can be avoided by giving a last will in which it is opted for the application of the national law, recommendable in all those cases in which a person wants to maintain the link between his succession and his national law, planning its succession, and do not leaving it to depend on something uncertain as the place of habitual residence, which in some cases may be difficult to establish with certainty.

In these situations it is advisable in the will or succession agreements to make express reference to the law (national or residence) that is of desired application.

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