Inheritance law for a German/Spanish couple

Mixed-national married couples should know that questions of matrimonial property law also play a central role in determining the inheritance quotas. The matrimonial property regimes such as community of accrued gains, separation of property or community of accrued gains under Spanish law have different effects on the inheritance quotas.

For marriages entered into since 29.01.2019, the EU Regulation on Matrimonial Property Regimes (EUTMR) applies.

This regulation governs which matrimonial property law is to be applied when a marriage is concluded abroad. The basic rule is that the law of the country in which the spouses have their first common habitual residence applies. If there is no common residence, the law of the nationality of both spouses applies. If there is also a lack of common residence, the law of the country with which the spouses are most closely connected at the time of the marriage applies.

Choices of law made after this date are governed exclusively by the Brussels I Regulation. For marriages concluded before 29.01.2019, the previous private international law applies. However, it is possible to make a choice of law, which is then again governed by the Brussels I Regulation (for more information on the Brussels I Regulation, click here).

There is a particular need for action if the applicable inheritance law does not coincide with the applicability of matrimonial property law. This can lead to problems when determining the inheritance quotas, as the provisions of matrimonial property law conflict with those of inheritance law.

Example:

The Spanish husband marries the German wife on 01.02.2019 in Germany and has his first common habitual residence with her there. The couple do not conclude a marriage contract with a choice of law. 

• German matrimonial property law applies. In the absence of a marriage contract, the spouses are married under the statutory matrimonial property regime of community of accrued gains under German law.

The spouses change their habitual residence and move from Germany to Madrid/Spain and have two children. The German wife, who has her last habitual residence in Madrid/Spain, dies first without leaving a will.

• Spanish inheritance law is applicable to the succession due to the last habitual residence. According to this law, the children inherit according to the statutory succession, whereas the spouse is only entitled to a usufructuary right to part of the inheritance.
• This conflicts with the German regulation that in the event of the death of a spouse, the statutory inheritance share of the surviving spouse is increased by a quarter of the inheritance in accordance with Section 1371 (1) BGB. Spanish law does not recognize this flat-rate increase in inheritance rights, which in practice may lead to difficulties in obtaining a European Certificate of Succession with the correct quotas.

Conclusion:

Skilful estate planning and the correct handling of the EU Inheritance Regulation and the Brussels I Regulation can achieve the results that the spouses envisage.

If, for example, the German-Spanish couple has their habitual residence in Germany, German inheritance law would apply to the Spanish spouse, as well as to the German spouse, based on the general rule. They can then even draw up a joint spouse's will (Berlin will), which would otherwise not be possible under general Spanish law.