Scope of the European Succession Regulation
According to Article 1 of the European Succession Regulation (Europäische Erbrechtsverordnung), the European Succession Regulation applies to succession to the estates of deceased persons. It does not apply to revenue, customs or administrative matters.
The following matters are excluded from the scope of the EuErbVO, as specified in Article 1(2)
- the status of natural persons, as well as family relationships and relationships deemed by the law applicable to such relationships to have comparable effects;
- the legal capacity of natural persons, without prejudice to point (c) of Article 23(2) and to Article 26;
- questions relating to the disappearance, absence or presumed death of a natural person;
- questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage;
- maintenance obligations other than those arising by reason of death;
- the formal validity of dispositions of property upon death made orally;
- property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to point (i) of Article 23(2);
- questions governed by the law of companies and other bodies, corporate or unincorporated, such as clauses in the memoranda of association and articles of association of companies and other bodies, corporate or unincorporated, which determine what will happen to the shares upon the death of the members;
- the dissolution, extinction and merger of companies and other bodies, corporate or unincorporated;
- the creation, administration and dissolution of trusts;
- the nature of rights in rem; and
- any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.
Universal application
Any law specified by this European Succession Regulation is to be applied whether or not it is the law of a Member State. See Art. 20 of the Regulation.
General rule
Unless otherwise provided for in the European Succession Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death. See Art. 21 para 1 of the European Succession Regulation.
Example: Testator X, a German citizen, died with his last habitual residence in Germany. The courts of the Federal Republic of Germany apply German law with regard to his worldwide estate.
Special provisions
Where the law of the State in which certain immovable property, certain enterprises or other special categories of assets are located contains special rules which, for economic, family or social considerations, impose restrictions concerning or affecting the succession in respect of those assets, those special rules shall apply to the succession in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession. See Art. 30 EuErbVO.
Conflict-of-law rules, which generally subject immovable property (immovables) to the law of the place where it is located (lex rei sitae), as exist in particular in common law countries (e.g., England, USA, Australia), are not special rules in this sense (Recital 54, p. 4). In our opinion, however, the rules on homestead are special provisions within the meaning of Art. 30 EuErbVO.
Renvoi
If the law of a non-member-State is applicable pursuant to Art. 21 para of the European Succession Regulation, then, pursuant to Art. 34 para 1 of the European Succession Regulation, its conflict-of-law rules must also be observed insofar as it refers to the law of a Member State (lit. a) or the law of another third country that would apply its own law (lit. b). Consequently, a referral back to German law by the conflict-of-law rules of a third country within the meaning of the European Succession Regulation, e.g., concerning immovable property, must be observed. The law of the third country may leave the question of whether the individual items of the estate are movable or immovable property to the law of the place where they are located (qualification referral).
Escape clause
If the deceased had his habitual residence in one country, but it is clear from the circumstances as a whole that at the time of their death they had a manifestly closer connection to a country other than that of their last habitual residence, the law of that other country shall apply to the succession pursuant to Article 21 para of the EU Succession Regulation.
This provision is intended to apply, for example, in exceptional cases where the deceased moved to the country of his or her habitual residence shortly before his or her death and it is clear from all the circumstances that he or she had a manifestly closer connection with another country (EC 25 p. 1).
If it is merely difficult to determine the habitual residence of the deceased, this does not constitute a case covered by Article 21(2) of the European Succession Regulation (EC 25 p. 2).
Choice of Law Clauses
Pursuant to Article 22 para 1 of the European Succession Regulation, the testator may choose the law applicable to their “succession as a whole”. The choice of law can include the law of the State whose nationality he possesses:
- at the time of making the choice or
- at the time of death.
If an individual possesses multiple nationalities, they may choose the law of any of the countries whose nationality he possess at the time the election is made or at the time of death.
The choice can be made expressly in a declaration in the form of a disposition of property upon death (e.g., a will) or it shall be demonstrated by the terms of such a disposition (implied choice of law).
The implied choice of a particular national legal system may be supported in particular by the fact that the testator uses terms or legal concepts that are specific to that legal system (Federal Court of Justice, decision of February 24, 2021 – IV ZB 33/20; dissenting: Munich Court of Appeal, decision of August 22, 2025 – 33 Wx 246/24).
A choice of law is only permissible if it pertains to the entire estate of the decedent. A choice of law with regard to particular assets or assets located in a particular jurisdiction is ineffective.
In case of a choice of law election, the substantive provisions of the chosen law are applicable. The conflict of laws rules of the appointed State are irrelevant because a renvoi is not applied.
If the law of a country that comprises more than one territorial unit is elected, the inheritance law of the unit (e.g., state or province) in which the decedent had the closest connection shall apply.
Deemed Choice of Law
If a disposition of property upon death was made before August 17, 2015, in accordance with the decedent's chosen law according to the Regulation, that law shall be deemed to have been chosen as the law applicable to the succession. See Art. 83 para 4 European Succession Regulation.
The provision is intended to protect the testator's confidence in the continued validity of his or her last will and testament, which he or she had drawn up before the residence statute came into force in accordance with Art. 21 of the European Succession Regulation. In view of the purpose of the provision, the testator's awareness of the declaration is not required in this respect. See Decision of the Court of Appeal of Karlsruhe (ZEV 2024, 534).
Since, according to Articles 22, 24 para 2, and 25 para 3 of the European Succession Regulation, only the law of nationality is eligible for selection, the Court of Appeal of Karlsruhe (ZEV 2024, 534) has ruled that there cannot be a deemed election of law of the citizenship if the foreign country does not apply the law of the citizenship of the deceased.
Since, according to the EuErbVO, a choice of law is only permissible for the “entire succession” and the purpose of the norm (protection of trust) does not require application in this case, a disposition limited to part of the estate should be permissible.
Since, according to the European Succession Regulation, a choice of law is only permissible for the “succession as a whole”, a disposition limited to part of the estate cannot result in a deemed election of law (controversial).
Public Policy
The application of a provision of the law of any State specified by the Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.
The Federal Court of Justice (BGH) has has held in its judgment of April 22, 2021, file no. 24 U 77/20, that English law regarding the forced share (Pflichtteil) is not applicable due to a violation of German public policy if a UK national (with the closest connection to England) with habitual residence in Germany elects British law to govern "succession as a whole" pursuant to Art. 22 of the European Succession Regulation. The decision should not be understood in such a way that the testator can never avoid the German forced share by choosing the law of his citizenship, as the establishment of a violation of the German public policy always requires a case-by-case analysis and a "sufficient domestic connection".
Substantive validity of Wills and other dispositions upon death
Dispositions of property by a Will or other disposition upon death (other than agreements as to succession) are governed, as regards their admissibility and substantive validity, by the law which, under the European Succession Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made.
Notwithstanding the foregoing, a person may choose as the law to govern his disposition of property upon death, as regards its admissibility and substantive validity, the law which that person could have chosen in accordance with Article 22 on the conditions set out therein.
Agreements as to succession
An agreement as to succession regarding the succession of one person shall be governed, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law which, under this Regulation, would have been applicable to the succession of that person if he had died on the day on which the agreement was concluded. See Art. 25 para 1 of the European Succession Regulation.
The parties to the inheritance contract may choose the law that the person or one of the persons whose estate is affected could have chosen under Article 22, subject to the conditions set out therein.
Formal validity of dispositions of property upon death made in writing
Germany is a member state of the Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, also commonly referred to as "Hague Convention on the Form of Testamentary Dispositions". Thus, a Will is valid as regards to form if its form complies with the internal law:
a) of the place where the testator made it, or
b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or
e) so far as immovables are concerned, of the place where they are situated.
Consequently, most foreign wills are formally valid from a German perspective and it is not mandatory to create a separate will for German assets. However, is may be advisable to make a separate will for Germany as the legal concepts differ significantly and a German will may facilitate estate administration.
Glossary: choice of law clause (Rechtswahlklausel); Substantive validity of a Will
