The recent European legislation (Reg. UE n. 650/2012), which entered into force the 17th of August 2015, could be considered a breakthrough in the matter of the applicable inheritance law for European citizens.
Until the introduction of the abovementioned regulation, many Member States (Italy, Austria, Germany, Greece, Spain) used to apply, as the law governing the succession, the principle of citizenship of the deceased.
Therefore, the succession of an Italian citizen used to be ruled by the Italian law, despite the effective domicile. In those cases, a dispute concerning the law to be applied to the succession would have raised, if the deceased lived abroad owning assets located within the Italian territory: either the citizenship law or the domicile law. This led to significant consequences, in fact some of the EU State – and not all of them - compulsorily provide for the legitimate succession, an indefeasible portion of the estate known as reserved quota (legitimate quota) meant to be devolved to certain heirs – spouse, descendants and/or ascendants - so that the legitimate expectations of persons entitled to a reserved share won’t be frustrated.
Even if the Italian citizen living abroad had the faculty to draw a will declaring as the applicable law, the legislation of the country where he/she had the habitual residence, nevertheless the legitimate quota was still preserved.
From the 17th of August 2015 the scenario, for Italian citizens living in one of the EU Member States, remarkably changed, indeed from that moment the applicable law should be the one of the habitual residence of the deceased at the time of death (art. 21) not the citizenship law, In view of the increasing mobility of citizens.
Hence, if the Italian citizen habitually living in Germany, dies intestate, the succession will be ruled from the German law, including all the deceased’s assets, are they either located in Germany or elsewhere (for instance in Italy).
Though, Reg. UE n. 650/2012 enables EU citizen to designate the law applicable to the succession (expressly in a declaration in the form of a disposition of property upon death) only between the citizenship law – including non EU countries - or the habitual residence law.
The choice of the applicable law is crucial, therefore the drawing of the will is essential and unavoidable.
Choosing which law would govern the succession, could determine considerable effects, for instance, in the matter of legitimate quota.
In Belgium, if the deceased has one or more children, the spouse is entitled only to an usufruct in the estate; under Spanish law the surviving spouse has the right of usufruct over a share of the deceased’s estate, in England there is not any provision about legitimate quota.
Under Article 23 of the EU Reg., the applicable determined pursuant to art. 21-22, shall govern the succession as a whole, also regarding: the determination of the beneficiaries and of their respective shares, the capacity to inherit, the disinheritance and disqualification by conduct, the sharing-out of the estate.
Article 25 rules agreements as to succession and article 28 rules the validity as to form of a declaration concerning acceptance or waiver. Art. 62 provides for the creation of a European certificate of succession.
For all this concerns, the inheritance planning is decisive for Italian citizens living abroad and for EU or non EU citizens living in Italy, with meticulous and prudent awareness under any perspective.
Milan, 4th April 2016
