New EU Inheritance Law: Are Previously Drafted Wills of Married Couples Invalid?

Background

This summer, numerous regulations concerning inheritance law will change. A typically German provision is particularly affected: The so-called “Berlin Will,” (Berliner Testament) according to which married couples, reciprocally designate each other as heirs through a joint will and provide that following the death of the surviving spouse, the inheritance should be bequeathed to a third party, frequently the descendants. Regardless of whether the deceased persons were emigrants living abroad, “medical care tourists” (Pflegetouristen), and/or pensioners living abroad, a German married couple which has executed a Berlin Will in Germany and then moves its “usual residence” abroad can no (longer) safely presume that the expressed intent will also be recognized by other countries, at least if a “foreign estate” (Auslandsnachlass) is involved.

New Legislation

On 17 August 2015, the European Succession Regulation (Europäische Erbrechtsverordnung) will become effective. The European Union aims at developing unified standards in the field of inheritance law. To be able to achieve this objective in all twenty-eight member states at the same time, this European regulation was necessary. Among others, it contains new provisions governing jurisdiction and the respectively applicable law. In cross-border inheritance cases, therefore, only one legal framework applies, namely the inheritance law of the country in which the deceased had its “usual residence” at the time of death. A risk of negative surprises exists, therefore testators should act now. However, opinions on the law, published in the press and implying that the new EU inheritance law will render “German wills worthless” are at once inaccurate and too general. Firstly, the regulation only applies to the legal successors of persons deceased on 17 August 2015 or thereafter. If the testator had elected the law applicable in the event of his death prior to August 2015, then this choice of law is (nonetheless) effective, if the choice of law satisfies certain prerequisites, which are provided for in the EU regulation, or if the choice of law is effective under the legal provisions of international private law, valid either in the country in which the testator had its usual residence at the time, or in a country of which they were nationals.

For example: A German couple which has chosen Spain as its permanent place of residence and primarily resides there during the year, has the possibility to apply the so-called “Berlin Will” drafted prior to the new regulation taking effect. However, a handwritten comment may be necessary, with which the spouses jointly decree that German inheritance law should be applicable to their estate.

Summary

German couples who have drafted a joint will and subsequently moved their usual residence abroad should inform themselves in a timely manner and, if necessary, make a correction to ensure the effectiveness of the testamentary disposal in the event of their death.