INHERITANCES - NEW REGULATION WITHIN THE EUROPEAN UNION - APPLICABLE LAW

Regulation  EU 650/2012 will be applicable to all civil aspects of any transmission of assets, rights and duties by reason of death, coming from a testacy or intestacy inheritance, to be in vigour since 17^th August 2015. The Regulation will be universally applied among all EU members and thirds States (unless in breach with an international treaty signed between a EU member and a third State).

From now on, the general rule is that the applicable law to succession is the one of the resident of the decedent at the time of the death. Article 21 of the Regulation says:  “1.   Unless otherwise provided for in this 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. 2.   Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.”

Many legal voices are warning about problems of adaptation that may come into Spain as consequence of application of this European Regulation, among others, because it would be very difficult to unify the special internal inheritance laws of each Autonomous Community (foral rights). Likewise, in Spain exist the “legitima” (legal portion that belongs to the inheritor and he cannot be deprived of it) that does not exist in other countries. On the other hand, in Spain it is not admitted the election of applicable law to the succession by reason of death (the national law of the decedent is applicable) and, therefore, article 9.8 of Spanish Civil Code could be affected.

Article 22 of the Regulation accepts the election in the Will of the law of nationality at the time of granting a Will or at the time of the death. The Regulation also incorporates the applications concerning the certificates, resolutions, public  documents and judicial transactions.

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