PIL – International inheritance law – Applicable law and choice of law

Deaths on or after 17 August 2015

For deaths on or after 17 August 2015, the European Succession Regulation (EU) No. 650/2012 applies. Art. 25(1) of the German Introductory Act to the Civil Code (EGBGB), which was previously decisive under German law, as well as Art. 28 of the Greek Civil Code (ZGB), no longer apply since then. As a basic rule, under Art. 21 of the Regulation, the entire succession is governed by the law of the state in which the deceased had their habitual residence at the time of death – unless it is clear from all the circumstances that there was manifestly a closer connection to another state.

Under Art. 22 of the Regulation, the deceased may choose the law of the state whose nationality they possess at the time of the choice or at the time of death; the choice of law must be made expressly in a disposition of property upon death. The Regulation applies universally (Art. 20 of the Regulation), i.e. even where the law it designates is that of a non-member state (e.g. the law of a US state, noting that the United States has no uniform federal law of succession).

Note: the Regulation applies to all EU member states except Denmark and Ireland, which do not participate. It was never applicable to the United Kingdom in any event; Brexit (effective since 31 January 2020) has not changed this.

Deaths Before 17 August 2015

For the administration of estates relating to deaths that occurred before 17 August 2015, Art. 25 EGBGB and Art. 28 ZGB continue to apply.

Art. 25 EGBGB (Introductory Act to the German Civil Code)

Under this provision, succession is governed by the deceased’s national law at the time of death. An exception is the limited choice of law under Art. 25(2) EGBGB: for immovable property located domestically, the deceased may choose German law by way of a disposition of property upon death; this can result in a split estate if the deceased’s national law continues to govern the remainder of the estate.

Art. 28 of the Greek Civil Code (ZGB)

Art. 28 ZGB likewise looks to the deceased’s nationality at the time of death. For Greek nationals living abroad, Art. 21 of Law 1738/1987 provides for an important exception: a person who was continuously domiciled abroad for at least 25 years before their death is not subject to the restrictions of Greek compulsory-portion law.

A further exception concerns the formal validity of dispositions of property upon death: here, Art. 11 ZGB refers to the Hague Convention on the Form of Testamentary Dispositions of 5 October 1961, which Greece ratified through Law 1325/1973; Art. 27 of the EU Succession Regulation also essentially refers to its principles, so that Art. 11 ZGB remains substantively instructive even today, though for deaths on or after 17 August 2015 it is superseded by the EU Regulation, which takes precedence.