Attempts to Harmonize the Inheritance Law in Europe: Past, Present, and Future

• Author: Mariusz Zalucki
• Position: PhD; Head of the Institute of Private Law, Andrzej Frycz Modrzewski Krakow University, Poland
• Pages: 2317-2338

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Attempts to Harmonize the Inheritance

Law in Europe: Past, Present, and Future

Mariusz Załucki*

ABSTRACT: Inheritance law has gained increasing importance within the

European perspective. The laws that have been considered stable are now met

with the requirements of modern times and are no longer sufficient. Increasing

population migration and foreign property holdings as well as multinational

businesses are the features of today’s modern European society. Unfortunately,

in the event of death and the subsequent cross-border inheritance proceedings

the situation is highly complicated due to the various applicable inheritance

laws. Indeed, the individualized legal systems of each European Union

Member State have different rules regarding the fundamental issues of

inheritance, including intestacy, the freedom to dispose of assets in the event

of death, and the protection of relatives of the deceased. The lack of

uniformity—or even compatibility—is a striking practical problem.

Therefore, there is a need to harmonize the rules of inheritance in the

individual Member States and establishing a common European inheritance

law is a tempting solution. However, this discussion has not even begun.

Nevertheless, EU Regulation No. 650/2012 addresses succession, the issues

of applicable law for cross-border inheritance, jurisdiction, and establishes the

European Certificate of Succession, which documents inheritance rights in all

EU countries and serves as a useful guidepost for harmonization. The

Regulation, however, causes numerous controversies in practice. This Article

aims to analyze both the framework for inheritance law and the current trends

in the legislation as well as highlight some of the more significant problems

caused by the Regulation. In the end, the Article demonstrates that the reality

of a single, uniform inheritance law for all EU countries is still far in the

future.

I. INTRODUCTION ........................................................................... 2318

II. THE NATIONAL REGULATIONS’ DIVERGENCE PROBLEM ............. 2321

* PhD; Head of the Institute of Private Law, Andrzej Frycz Modrzewski Krakow Universit y,

Poland.

2318 IOWA LAW REVIEW [Vol. 103:2317

III. FIRST ATTEMPTS TO NEUTRALIZE DIVERGENCES IN THE

AREA OF INHERITANCE LAW ........................................................ 2325

A. THE GREEN PAPER ON SUCCESSION AND WILLS ....................... 2326

B. EU SUCCESSION REGULATION ................................................ 2328

1. Article 4 of the Regulation ......................................... 2329

2. Article 21 and 22 of the EU Succession

Regulation.................................................................... 2330

3. The European Certificate of Succession ................... 2332

IV. NEW OBSTACLES TO NEUTRALIZE ............................................... 2334

A. COEXISTENCE OF ECS AND NATIONAL CERTIFICATES ............... 2334

B. LEGATUM PER VINDICATIONEM .............................................. 2335

C. THE SCOPE OF THE REGULATION............................................ 2336

D. DISINHERITANCE AND PROTECTION OF THE PEOPLE

CLOSE TO THE DECEASED ....................................................... 2337

V. CONCLUSION .............................................................................. 2338

I. INTRODUCTION

Life in the European Union (“EU”) has changed. The times when Poles

lived only in Poland, Germans in Germany, or the Dutchmen in the

Netherlands, and only a small portion of them migrated are gone forever.

Today, for example, several million Polish citizens are living in other EU

countries.1 There are also countries such as Luxembourg, where more than

20% of the population are foreigners.2 The economic fusion of the individual

EU Member States into a single economic organism seems only a matter of

time. Paradoxically, United Kingdom’s exit from the EU may accelerate the

process.3

Not surprisingly, this new reality has raised a number of questions related

to the area of inheritance law. After all, when abroad, people often get

married and settle down without changing their citizenship, they acquire

property abroad, and finally, they die.4 The different inheritance law

1. See generall y Mariusz Załucki, Ku jednolitemu prawu spadkowemu w Europie. Zielona Księg a

Komisji Wspólnot Europejskich o Dziedziczeniu i Testamentach, 7 PROBLEMY WSPÓŁCZESNEGO PRAWA

MIĘDZYNARODOWEGO, EUROPEJSKIEGO I PORÓWNAWCZEGO 103 (2009) (presenting the statistics

of nationals living abroad).

2. HEINRI CH DÖRNER & PAUL LAGARDE, ÉTUDE DE DROIT COMPARÉ SUR LES RÈGLES DE

CONFLITS DE JURIDICTIONS ET DE CONFLITS DE LOIS RELATIVES AUX TESTAMENTS ET SUCCESSI ONS

DANS LES ETATS MEMBRES DE L’UNION EUROPÉENNE § II (2002).

3. Usually, the main argument raised against such fusion is the British system’s differences,

which, in the context of further integration, was allegedly a major barrier. Therefore, it may be

assumed, the EU integration will have further stages.

4. See Matteo A. P ollaroli, EU Regulation No. 650/2012 and Access to New Forms of

Intergenerational Transfer of Wealth, 2 RICERCHE GIURIDICHE 405, 408–10 (2013).