Since today, Monday, the new European Inheritance Regulation has been in force. At the same time, many Germans who are spending their retirement in Spain have disinherited their spouses. However, this has happened without the spouses being aware of it.

As of today, Spanish and no longer German inheritance law applies to many Germans living in Spain,” explains Angelika Herfurth, a family law specialist with experience in international inheritance law in Hanover. The reason is the EU Inheritance Law Regulation that came into force on 17 August - it stipulates that inheritance law is no longer determined by the nationality of the testator, but by his or her habitual residence.

Inheritance law will in future be based on the habitual place of residence

Example: In Spanish inheritance law, the spouse does not become heir, but only has a monetary claim against the heirs to the amount of one third of the estate. This is similar to a usufruct, so the widow cannot claim it in full immediately, but the heirs may pay the widow a lump sum. In any case, this means that the widow does not become the universal successor of the deceased and cannot dispose of his estate as well.

However, the EU Inheritance Regulation only applies to inheritance law, not to family law and matrimonial property law; any claim to equalisation of gains therefore remains under German law and must be satisfied in advance from the estate.

As a German in Spain, however, you can avoid this applicability of Spanish inheritance law. Every German abroad can and should decide whether they want German inheritance law or the law of their country of residence,” emphasises Angelika Herfurth. She adds that every testator can make the choice of law in their will or in a separate declaration in the form of a will.

EU Inheritance Regulation has no influence on inheritance tax

The new Inheritance Law Regulation has no influence on the upcoming reform of inheritance tax. However, the inheritance is usually still taxed in Germany according to German tax law, and the real estate in Spain is taxed in Spain according to Spanish law. Antoni Fito, a lawyer in Barcelona, explains: “Unfortunately, the allowances for spouses in Spanish inheritance law are much lower than in Germany. And the Spanish tax authorities no longer recognise when a property is packaged into a Spanish company and taxed at its nominal capital? With a corresponding tax arrangement under German law, on the other hand, the German tax allowances could be used.

Review the arrangements made in the will

Against the backdrop of the EU Inheritance Law Regulation, which applies throughout Europe, a review of existing testamentary arrangements by a specialised lawyer is urgently recommended.

Further information on the EU Inheritance Regulation is available at www.herfurth.de/ News, and under www.rechtprivat.de.