Current threats to the EU Succession Regulation

The European Succession Regulation applies in most EU states, and determines which law applies when someone dies leaving assets in more than one country. However, its principles now find themselves undermined by recent changes in French and German law. 

The European Succession Regulation

European Succession Regulation EU650/2012, otherwise known as Brussels IV, (‘the ‘Regulation’) came into effect on 17 August 2015, and applies to all EU member states except Denmark and Ireland, who opted out. 

The aim of the Regulation was to harmonise and simplify cross-border successions across EU countries, and so avoid the complications and conflicts of law that would typically arise in cross-border successions, with each country applying its own rules.

In essence, the Regulation establishes that the succession laws of the country of an individual’s habitual residence will apply to the devolution of their worldwide estate. It also allows for this default position to be overridden by making an election of the laws of one’s nationality to apply instead. Put simply, a British testator with a holiday home in France, for example, can choose English & Welsh, Scottish or Northern Irish law (depending on which jurisdiction they are most closely connected with) to apply to the succession of their French estate.

Why make an election of law

Under English and Welsh law there is complete testamentary freedom, meaning you can leave your assets to whomever you wish under your Will.

However this is not the case in many foreign legal systems, which prevent individuals from disinheriting specified family members, usually children and spouses. This is colloquially known as ‘forced heirship’. It works by giving fixed shares to these family members and these fixed shares take precedence over provisions made in a Will. Only what is left after the fixed shares have been distributed can be given away under the Will.

English and Welsh testators tend to elect the law of their nationality to avoid local forced heirship rules. This allows them to leave everything to their spouse or partner on the first death, for example, which would otherwise not be possible in many EU jurisdictions.

Recent developments in France and Germany

Under Article 35 of the Regulation, the election of a national law can be refused in exceptional circumstances if its application is incompatible with the public policy of the relevant member state.

France and Germany have forced heirship rules protecting children. Under recent legal developments, these have been held, at a national level, to take precedence over valid elections of national law that do not include forced heirship provisions (such as England and Welsh law) made under the Regulation, on the basis that the election of law is incompatible with French and German public policy.

France and ‘droit de prélèvement’ under Article 913 of the Civil Code

In 2021 France introduced a new law which limits the effectiveness of an election of national law in some circumstances.

Under amendments made to Article 913 of the French Civil Code, if you or at least one of your children are a national of an EU member state or habitually resident in an EU member state at the time of your death, then your children are entitled to compensation (droit de prélèvement) if they do not receive under your Will what they would otherwise be entitled to under French forced heirship rules. The compensation is limited to their ‘fixed share’ and only assets located in France can be used towards it.

This means that notaires dealing with successions in France are now required to contact all children of the deceased to ask them if they are happy with the terms of the Will, or if they prefer to receive the share that they would have received if French forced heirship was being followed. If the children do not accept the terms of the Will, then the notaire is obliged to compensate them.

These provisions appear to conflict with EU succession law, which would normally override French legislation.

Germany and case IV ZR 110/21

In the case of IV ZR 110/21, the German Federal Court of Justice ruled on 29 June 2022 that an election of English law made under the Regulation was ineffective, on the basis that it was incompatible with German public policy.

The case concerned a British national resident in Germany, whose Will completely excluded his son, a German national and resident. Whilst the deceased’s wishes could take effect in English law, German law entitled the son to a compulsory share (‘pflichtteil’) of the estate.

The court held that the son’s entitlement to a compulsory share was a German constitutional right, part of German public policy.

The court considered equivalent mechanisms under English law, namely the right for children to claim financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. However this was considered to be non-equivalent to the entitlement under German law, because it is not automatic. Rather, the right to compensation depends on the particular needs of the claimant in each case.

The fact that the law of choice did not provide the son with an automatic right to a share of his father’s estate was a key factor in the court reaching their decision.

Another determining factor was the deceased and his son’s strong German connections. The court ruled that there needs to be sufficiently strong ties to Germany for a claim to have an election of national law disapplied, and this was met in this case. The deceased had lived in Germany for many years, and died there leaving German assets, while the son was a German national and resident

What next

Both the French legislation and German case law appear to directly contradict the principles of the Regulation, and undermine its aim to harmonise succession laws across Europe.

Whilst there is indeed scope under Article 35 for elections of law to be disregarded in the name of public policy, it was intended for such scope to be narrow and to only apply in exceptional circumstances.

Have France and Germany gone too far? The German case was based on very specific facts and so it may be of limited application, but the French recent law is a blanket rule that French notaires are obliged to apply. It will take an application to the European Court of Justice to provide clarity and certainty, and this could take many years. As to when a challenge will be made, and its outcome, is at this time uncertain.

In the meantime, there is dissatisfaction with the current state of uncertainty amongst many practitioners, and it has been reported that complaints are being submitted to the European Commission. 

For clients with assets in France or  Germany it is more important than ever to obtain cross-border estate planning advice and review their Wills. The International and Cross-Border team at Stone King LLP can assist in analysing your particular circumstances, providing cross-border estate planning advice, exploring how your wishes can take effect in as far as possible in light of these recent developments, and putting in place appropriate Wills.

For more information or to discuss how these recent developments may affect you please contact

Raquel Ugalde at raquelugalde@stoneking.co.uk or international@stoneking.co.uk. We would be delighted to help.