International Inheritance Law 2026: EU-ErbVO in Practice

What the EU-ErbVO governs in 2026 — and what it does not

The EU Succession Regulation is a directly applicable instrument of European Union law that covers only the civil-law side of a cross-border estate: the applicable substantive law, the international jurisdiction of the courts, and the recognition of judicial decisions. It applies in all EU Member States with the exception of Ireland and Denmark.

Scope

Three questions are governed in particular: which inheritance law applies, which court has jurisdiction, and how decisions and certificates of succession are recognised in other Member States. The regulation uses a uniform connecting factor: the habitual residence of the deceased at the time of death (Article 21 EU-ErbVO). One important detail: German courts apply the EU-ErbVO universally — that is to say, also where the designated law is the law of a third state (Article 20 EU-ErbVO).

What stays outside

Three fields remain national in scope and are the biggest pitfalls in practice:

1. Tax law — Erbschaftsteuer (German inheritance tax, governed by ErbStG) is levied independently by each state. Under § 2 ErbStG, Germany taxes the estate whenever the deceased or the heir has a residence in Germany — regardless of which inheritance law applies on the civil-law side.
2. Matrimonial property law — the equalisation of accrued gains under § 1371 BGB is a German peculiarity. Its qualification as either matrimonial or succession law had to be clarified by ECJ referrals (see KG Berlin, decision of 25 October 2016, 6 W 80/16).
3. Corporate shares — succession clauses in a GmbH articles of association or the accrual mechanism in a KG are governed by the law applicable to the company, not by the EU-ErbVO.

Habitual residence — the underestimated risk

Under Article 21 EU-ErbVO, the entire succession is governed by the law of the state in which the deceased had their habitual residence at the time of death. The concept is not legally defined. Recitals 23 and 24 of the regulation call for an overall assessment of the deceased's circumstances in the years preceding death and at the time of death — family, profession, social ties, length of stay.

What sounds like a formality is highly explosive in practice: a German retiree who spends ten months a year in Mallorca and only returns to Frankfurt at Christmas has their habitual residence in Spain. Spanish inheritance law then applies to the entire estate — including the terraced house in Bornheim. Spain operates the legítima system, which mandatorily allocates two-thirds of the estate to the children. A classic Berliner Testament (reciprocal will between spouses making each other sole heir and children residual heirs, § 2269 BGB) in favour of the surviving spouse would shatter against it.

What I often see with clients: the emigration is celebrated, the choice of law is forgotten. Three years later the notary calls to ask why the will does not work.

Choice of law: the most important lever

This is where Article 22 EU-ErbVO enters the picture — the most important provision in the entire regulation for a German tax and inheritance-law adviser. A testator may, by express declaration in a disposition of property upon death, choose the law of the state of which they are a national. German nationals can therefore choose German inheritance law — even after relocating their habitual residence abroad.

The choice of law must be set down in a formally valid will. A half-sentence is enough: "I choose German inheritance law within the meaning of Article 22 EU-ErbVO." Without that sentence, the law of habitual residence applies — with all the consequences for the Pflichtteil (statutory minimum share for close relatives in German inheritance law, § 2303 BGB), spousal succession, and legacies. Anyone who begins succession planning early can still add the decisive half-sentence today.

The European Certificate of Succession (ECS)

The European Certificate of Succession (Articles 62 et seq. EU-ErbVO) is the instrument heirs use to prove their entitlement in another EU Member State — for example to close a bank account in France or to register a corrected entry in the Spanish land register. It is issued by the Nachlassgericht (German probate court) of the Member State in which the deceased had their habitual residence.

A clarification of practical importance came from the Kammergericht Berlin. In its decision of 10 January 2017 (6 W 125/16), the 6th Civil Senate referred to the ECJ the question of whether a German Nachlassgericht may still issue a classic German Erbschein despite the regulation, when the certificate is to be used in parallel with the European Certificate of Succession. Background: the Erbschein and the European certificate have different effects, and the German Erbschein often remains more practical for purely domestic matters.

Equally significant: by decision of 25 October 2016 (6 W 80/16), the KG Berlin referred the qualification of the spousal share increase under § 1371 BGB to the ECJ. The ECJ later clarified in Mahnkopf (C-558/16, judgment of 1 March 2018) that the flat-rate increase of the surviving spouse's share by one quarter under Zugewinngemeinschaft (community of accrued gains, the default matrimonial property regime in Germany) is a question of inheritance law — and must therefore be shown in the European Certificate of Succession. For German couples living elsewhere in the EU this was a breakthrough, because the surviving spouse's entitlement now remains visible across borders.

Practice scenarios and tax pitfalls

Three typical constellations from advisory practice show how widely the legal outcome can diverge.

A concrete numerical example

Klaus M. (74), a German national, has lived year-round in Andalusia for eight years. Estate: 800,000 euros (Spanish apartment 350,000 euros, German securities account 350,000 euros, life insurance 100,000 euros). Married, two adult children. Existing Berliner Testament in favour of the wife — without a choice of law.

Outcome without a choice of law: Spanish inheritance law applies. The children mandatorily claim the legítima estricta of one third, with a further third allocated as the "mejora" to the descendants. The wife only receives a usufruct on the remaining third of the freely disposable part — no ownership. The Berliner Testament is largely ineffective.

Outcome with a choice of German law (one half-sentence in the will): the entire estate passes to the wife. The combined Pflichtteil of the children amounts to 25 percent of the estate — 200,000 euros. On the tax side the wife uses her Freibetrag (personal tax-free allowance, § 16 ErbStG) of 500,000 euros plus the additional pension allowance. The rates and brackets are set out in the Inheritance Tax Table 2026.

The tax side has to be addressed in parallel. Spain taxes the assets located within Spain, Germany taxes worldwide assets to the extent that the heir or the deceased has a German residence or habitual residence (§ 2 ErbStG). There is no double-taxation treaty for inheritance tax with Spain — § 21 ErbStG does, however, allow the foreign tax to be credited against the German liability to the extent the same assets are taxed.

What you should do in 2026

Anyone with assets or a centre of life abroad — even partially — should look at four points immediately:

1. Inventory: where are the assets located, where is habitual residence, which nationalities are held?
2. Review the choice of law: does a will exist, and does it contain an express choice of law under Article 22 EU-ErbVO?
3. Tax exposure: which national inheritance taxes apply, is there a double-taxation treaty or a crediting mechanism under § 21 ErbStG?
4. Procedural chain: is it clear which court has jurisdiction and whether a European Certificate of Succession will be needed?

Acting promptly pays off: a choice of law only takes effect if made during one's lifetime. After death, every correction is excluded.

What I often see with clients: the complexity looks daunting, yet the central switch — the choice of law — is a matter of half an hour with the notary. A professionally drafted will covers international constellations alongside everything else. The skill lies in recognising the constellations at all.

Frequently asked questions

When did the EU Succession Regulation enter into force?

The EU-ErbVO has been binding since 17 August 2015 in 25 of the 27 EU Member States. Only Ireland and Denmark are exempt — they retained their own conflict-of-laws rules. For all deaths from that cut-off onwards, the regulation determines the applicable national inheritance law on a primary basis — even where German courts have jurisdiction.

Does the EU-ErbVO also apply to third states such as Switzerland or the USA?

The regulation applies directly only in the EU Member States (Ireland and Denmark excluded). For a German estate with links to Switzerland, the USA, or the United Kingdom the respective national conflict-of-laws rules apply. German courts, however, apply the EU-ErbVO universally (Article 20 EU-ErbVO) — meaning the foreign law is examined where it could come into play.

What is the difference between the Erbschein and the European Certificate of Succession?

The German Erbschein under § 2353 BGB is a national evidential instrument with effect in Germany. The European Certificate of Succession under Articles 62 et seq. EU-ErbVO is recognised across the EU and has immediate effect in all Member States except Ireland and Denmark. Anyone with assets exclusively in Germany needs only an Erbschein. Anyone who has to deal with accounts or property elsewhere in the EU typically needs a European Certificate of Succession.

Can the choice of law still be changed later?

Yes — as long as the testator is alive and has testamentary capacity, any choice of law can be revoked or amended. The required form follows the form of the will (notarial or holographic). After death the choice is binding.

What happens without a will in a cross-border case?

Without a will, the law of habitual residence applies. The statutory order of succession then follows that law — not §§ 1922 et seq. BGB. A German national who dies in Italy is subject to Italian intestate succession, which uses a different forced-share system to Germany.

Does the choice of law also extend to inheritance tax?

No. The EU-ErbVO governs civil-law matters only. Erbschaftsteuer (German inheritance tax) remains a purely national matter under § 2 ErbStG and turns on the residence or habitual residence of the deceased and the heir. A choice of law changes not a single tax rule — tax planning has to run in parallel.

How does the EU-ErbVO affect a Berliner Testament?

The Berliner Testament is a German construct. Its effectiveness depends on German inheritance law applying. In a cross-border case without a choice of law, a foreign inheritance law often applies that does not recognise this construction. A choice of German law is therefore the first recommendation in every cross-border case. Where the death has already occurred, the focus shifts to the first steps and deadlines after a death.

Next steps

International inheritance law is not an exotic edge case. As soon as a holiday property, an overseas securities account, a foreign spouse, or a temporary residence abroad enters the picture, a review of the existing disposition upon death pays off. In an initial meeting we clarify whether your will contains a choice of law, whether that choice is sensible from a tax perspective, and which steps are necessary to safeguard the arrangement.

You can arrange a no-obligation initial meeting at sprichmit.florian-enders.de or write to enders@tes-partner.de. The full text of the EU-ErbVO is available in the Official Journal at eur-lex.europa.eu.