Regulation of International Succession for EU and Non-EU Nationals
Regulation (EU) No 650/2012, applicable since 17 August 2015, governs the vast majority of international successions connected with the European Union, in order to prevent their fragmentation between several conflicting national legal systems.
In particular, it determines jurisdiction, the law applicable to the succession as a whole, the recognition and enforcement of foreign decisions, and the use of the European Certificate of Succession.
Pursuant to Article 4 of Regulation (EU) No 650/2012, the central rule is, in principle, the application of the law of the State in which the deceased had his or her habitual residence at the time of death.
According to Recitals 23 and 24 of Regulation (EU) No 650/2012, habitual residence is not defined by a purely administrative criterion, but by a set of factors — such as the centre of family life, the duration and stability of presence, social and economic ties, and the intention to settle there permanently — making it possible to identify the true centre of the deceased’s life.
Regulation (EU) No 650/2012 also provides, exceptionally, a genuine “safety valve”: even if the deceased resided in one State, the applicable law may be that of another State if it is manifestly more closely connected with the deceased.
This exception, rare but significant, may apply in cases of very recent expatriation, prolonged hospitalisation abroad, professional activity mainly carried out in a country other than the apparent domicile, or where the deceased’s economic interests were concentrated elsewhere.
Article 22 of Regulation (EU) No 650/2012 introduces a strategic mechanism known as professio juris, allowing a person to choose in advance the law that will govern his or her succession, provided that it is the law of a State whose nationality he or she possesses.
This choice ensures legal certainty in estate planning, prevents conflicts between heirs, guarantees the stability of testamentary dispositions, and avoids being subject to an unwanted foreign law — for example, a British national living in France may opt for English law so that his or her succession is governed by common law rather than by the French forced heirship regime.
According to Recitals 83 and 84, Regulation (EU) No 650/2012 does not apply to certain countries, such as the United Kingdom (post-Brexit), the United States, Switzerland, Morocco, or certain Sub-Saharan African countries that do not follow a civil law tradition.
Nevertheless, it may interact with these States through the mechanism of renvoi — where foreign law refers back to the law of an EU Member State — through their internal conflict-of-law rules, or through the application of French public policy principles.
1. Regulation of International Succession for EU Nationals
In its “community” dimension, Regulation (EU) No 650/2012 covers all civil aspects of succession, whether testate (will, succession agreement) or intestate (in the absence of a will), thereby ensuring a comprehensive and harmonised approach.
It guarantees the unity of the succession: in principle, a single law applies to all assets, movable and immovable, regardless of their location.
The primary connecting factor is the habitual residence of the deceased at the time of death, while Article 22 of Regulation (EU) No 650/2012 allows any citizen to choose the law of his or her State of nationality to govern the succession (professio juris).
The Regulation also promotes the mutual recognition of court decisions and authentic instruments, which circulate freely between Member States without complex procedures.
Finally, pursuant to Article 63 of Regulation (EU) No 650/2012, the European Certificate of Succession (ECS) creates a uniform document enabling heirs, legatees, or executors to prove their status and rights in any EU Member State.
2. Regulation of International Succession for Non-EU Nationals
Certain matters and situations remain governed by national laws or international conventions and therefore fall outside the strictly community framework of the Regulation.
Among the major material exclusions, according to Recital 10 of Regulation (EU) No 650/2012, are taxation matters, as well as customs and administrative issues, which remain entirely subject to national law for the calculation and payment of inheritance taxes.
Matrimonial property regimes are also excluded: only their liquidation is taken into account in determining the estate, while the specific rules governing marriage and marriage contracts do not fall within the scope of the Regulation.
Other areas outside its scope include civil status matters, maintenance obligations (except those arising by reason of death), trusts, and company law.
The geographical limits and international interactions of Regulation (EU) No 650/2012 demonstrate that, despite its objective of unifying succession law within the European Union, its application remains subject to exceptions related to non-participating jurisdictions, third States, and existing international conventions.
The Regulation does not apply to all EU Member States: Denmark and Ireland do not participate and are therefore not bound by its provisions.
With regard to third States, where the law of a non-EU country is designated as applicable, mechanisms such as renvoi may apply, taking into account the private international law rules of that State, unless the deceased expressly chose that law.
In matters of registers and rights in rem, the registration of property in land registers remains subject to the law of the State in which the property is located (lex rei sitae).
If a foreign right in rem does not exist in the State where the property is situated, it must be adapted to the closest equivalent right under national law.
Finally, the Regulation does not affect international conventions to which Member States were already parties at the time of its adoption, such as the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.
Cabinet Nicolas BRAHIN
Advokatfirma i NICE, Lawyers in NICE
Camilla Nissen MICHELIS
Assistante – Traductrice
1, Rue Louis Gassin – 06300 NICE (FRANCE)
Tel : +33 493 830 876 / Fax : +33 493 181 437
Camilla.nissen.michelis@brahin-avocats.com
www.brahin-avocats.com
