🇪🇺Applicable Law to Succession: Brussels IV, Domicile and Lex Rei Sitae

Concept

When a testator and heirs are connected to different countries, the first question is which law governs the succession at all. The answer determines who inherits, in what shares, whether a reserved portion applies, and whether the estate can be disposed of as the testator intended. The interplay of domicile, residence, and citizenship on which all of this rests is covered in a separate note.

The basic fork in conflict-of-laws: movable property gravitates to the law of the deceased's last domicile or habitual residence, while immovable property gravitates to the law of the country where it is located (lex rei sitae). A single estate therefore often "splits" across several legal systems: one law applies to foreign accounts and portfolios, another to foreign real estate.

Before 2015, each country resolved this question in its own way: some held to the deceased's nationality (Germany, Italy), others to domicile or residence, and still others expressly divided the estate into movable and immovable masses (France, England). Several laws applied to a single estate at once, and forced-heirship claims from different legal systems contradicted one another. With assets in three or four countries, this meant parallel proceedings and the risk that one will would collide with another. It was this patchwork that the European legislator set out to put in order.

EU Regulation 650/2012 (Brussels IV)

Regulation 650/2012 has applied since 17 August 2015 in every EU country except Denmark and Ireland. It replaced the motley conflict-of-laws map with a single rule: by default, the entire estate is governed by the law of the country of the deceased's habitual residence at the time of death, with no split between movables and immovables. A single statute covers almost everything — the circle of heirs and their shares, the transfer of property, the executor's powers, and liability for the estate's debts. The Regulation's effect is universal (Article 20): the law it designates applies even where that is the law of a state outside the EU.

Professio juris — Choice of Law

Article 22 provides the key option: in a will, one may expressly subject the whole estate to the law of one's country of nationality — held either when the choice is made or at death. With dual nationality, either may be chosen. This is how a testator from a common-law country removes their EU estate from forced heirship; a Russian habitually resident in the EU does the same — they may choose Russian law (bearing in mind that it, too, has its own reserved portion).

How It Works in Practice

A Briton long resident in France would by default fall under French law with its rigid réserve héréditaire in favour of the children; by choosing English law in the will, they dispose of their property freely. The same manoeuvre is open to an American in Spain or a Russian in Portugal — the Regulation allows choosing the law of one's nationality even when that is the law of a state outside the EU. The choice is fixed in advance, during one's lifetime. Where the choice is made under Article 22, renvoi does not operate: the substantive law of the chosen country applies, without its conflict rules referring the matter on to a third legal system.

The European Certificate of Succession

The Regulation also created a single instrument — the European Certificate of Succession (ECS). This is a confirmation, issued in one EU country, of the rights of an heir, executor, or administrator, recognised in all participating states without separate procedures. The certificate records who inherits and in what shares, and who executes the will and administers the property. Instead of several national certificates, an heir with assets in different states obtains a single document. The details are in the note on the European Certificate of Succession; the issuing procedure is also described by the EU's official e-Justice portal.

Where Choice Does Not Help

Freedom of choice is not unlimited. The public-policy exception (ordre public) lets a court decline to apply the chosen law where the result is "manifestly incompatible" with its own foundations — though the mere absence of a reserved portion is not usually treated as such a breach. For real estate, lex rei sitae keeps its weight: some rights-in-rem questions are decided by the law of the country where the asset is located, where the list of rights in rem (numerus clausus) is, moreover, closed.

The sharp edges are smoothed by the case law of the Court of Justice. In Kubicka (C-218/16, 2017) the Court required Germany to recognise the in rem effect of a Polish "legacy by vindication" over German real estate, since the chosen succession law provides for that construction. Tax the Regulation does not touch at all: each country levies inheritance tax at its own rates, and the choice of succession law has no bearing on that burden.

Practical Conclusion

The order of steps is essentially simple. First, an inventory of assets and status: domicile, residence, nationality. Then succession planning and wills: with heterogeneous assets, wills in several jurisdictions are often drawn up. And tax is counted separately — it lives by its own rules, right down to the US-situs trap for US assets.

Cross-border succession requires a map of jurisdictions: where the assets are, where the habitual residence is, which nationality applies. On this map, wills are built (sometimes a separate one for each country) and the choice of applicable law is made.

🧭 Check your case: Inheritance Navigator — which law applies, where the reserved portion applies, and taxes.

Sources

• Regulation 650/2012
• the EU's official e-Justice portal