Article on European Union Regulation of Cross-Border Successions

Jennifer Bost published a comment entitled, Nothing Certain About Death and Taxes (and Inheritance): European Union Regulation of Cross-Border Successions. 27 Emory Int’l L. Rev. 1145-1174 (2013). Provided below is an excerpt from the introduction of the comment:

On July 4, 2012, after almost fifteen years of preparatory work, the European Parliament and the Council of the European Union (Council) passed a regulation intended to simplify international inheritance cases. ¹ The Regulation addresses issues regarding appropriate jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance and enforcement of authentic instruments for international inheritance (Cross-Border Succession). ² It also creates a European Certificate of Succession. ³ However, the Regulation expressly does not apply to any tax issues related to inheritance. ⁴

One of the objectives of the Cross-Border Succession Regulation was “[t]o allow citizens to efficiently plan and to organise their succession in advance in a cross border context.” ⁵ Barriers to free movement can arise from differences among laws governing international successions in EU member states. ⁶ The free movement of persons is a fundamental right guaranteed to EU citizens under its Founding Treaties ⁷ —realized by citizens through freedom, security, and justice without internal borders. This fundamental principle of free movement between member states is enshrined in Article 3(2) of the Treaty on European Union, Articles 21(1) and 45 of the Treaty on the Functioning of the European Union, and developed by EU secondary legislation and the case law of the Court of Justice of the European Union (CJEU). ⁸ Since the establishment of the European Coal and Steel Community (ECSC), ⁹ the Council has passed a number of regulations to foster free movement of persons, a major goal of European integration. ¹⁰

Approximately eleven million EU citizens have exercised their right of free movement under the treaties. ¹¹ This movement of people makes it more likely that a decedent’s estate and heirs are spread out over several member states. ¹² Additionally, marriages between nationals of different member states are increasing in frequency. ¹³ These marriages often entail the acquisition of property in multiple member states, ¹⁴ which has the potential to create inheritance complications at the death of a spouse. ¹⁵

Substantial differences in substantive succession laws among many member states are another major source of complications in both testate and intestate cross-border successions. ¹⁶ Additionally, member states have conflict of laws rules on cross-border succession that can make it difficult for heirs and testators to assert their rights. ¹⁷ The uncertainty with how courts in different member states can hinder the free movement of people that is contrary to principles enshrined in the Founding Treaties. ¹⁸