In an increasingly globalized world, cross-border inheritances have become an area of growing complexity. In our daily practice, we often face issues such as determining the applicable law and jurisdiction in successions that span multiple jurisdictions. EU Regulation 650/2012, which came into force in 2015, has been a milestone in this regard, providing a unified framework to address these issues within the context of the European Union. However, its practical application in Spain presents challenges that warrant careful analysis.
Determination of Applicable Law
EU Regulation 650/2012 establishes that the applicable law to the succession is that of the country where the deceased had their habitual residence at the time of their death (Article 21). This rule offers a significant advantage by providing a predictable and stable solution for most cases. However, defining 'habitual residence' can be problematic in situations where the deceased lived in multiple countries in the years leading up to their death. The case law of the CJEU has emphasized the need to consider the 'center of vital interests' of the deceased as a complementary criterion.
The figure of professio iuris allows the testator to choose the law of their nationality as the applicable law to their succession. This option, regulated in Article 22 of the Regulation, offers flexibility but requires a clear expression of intent that often must be explicit in the will. In our experience, it is essential for notaries and legal advisors to adequately document this choice to avoid subsequent litigation.
Jurisdiction in Cross-Border Inheritances
Jurisdiction in succession matters is attributed to the courts of the Member State where the deceased had their habitual residence at the time of their death, according to Article 4 of the Regulation. This general rule is complemented by Article 5, which allows for forum selection, reinforcing the autonomy of the testator's will. However, this choice must be clear and may be limited to specific issues of the case.
A recurring practical problem arises when inheritances involve properties located in third countries that are not members of the Regulation. In such cases, coordination between jurisdictions can be complicated. Recent case law from the Supreme Court (STS 2024/2025) has highlighted the need to consider the principles of private international law of each affected jurisdiction for effective resolution.
Recognition of Foreign Succession Acts
EU Regulation 650/2012 facilitates the recognition and enforcement of judicial decisions and public documents in succession matters issued in other Member States. However, when dealing with inheritance documents from outside the EU, the general principles of recognition of foreign acts apply, which often require additional legalization or apostille procedures.
Adapting the effects of foreign succession acts to the Spanish legal reality is another challenge. Article 31 of the Regulation allows for this adaptation, but in practice, it can be problematic, especially in cases where legal concepts differ significantly between the involved jurisdictions.
- Verify the habitual residence of the deceased to determine the applicable law.
- Consider the professio iuris with clear wording in the will.
- Evaluate the possibility of forum selection to resolve disputes.
Practical Issues with Inheritances in Third Countries
When the inheritance includes assets in countries outside the EU, lawyers must face additional challenges. Differences in succession regulations can create situations of conflict of laws that require a well-defined strategy. Coordination with experts in the foreign jurisdiction is often indispensable.
Moreover, the lack of an equivalent instrument to Regulation 650/2012 in third countries complicates the recognition of resolutions and documents. This necessitates a tailored approach in each case, taking into account the particularities of local laws and applicable international treaties, if any.
In conclusion, managing international inheritances under the framework of EU Regulation 650/2012 remains a complex area that demands deep and updated knowledge. Tools like LexPartis can facilitate this process, allowing legal professionals to manage cross-border successions with greater rigor and efficiency, thereby ensuring the correct application of the regulations and the protection of our clients' interests.