The complexity of legal issues that arise when deciding which judge has jurisdiction and which law is applicable in a cross-border succession case might be better understood by looking at a detailed, albeit made- up, example of one.
For our mock case, let us imagine a California-based married couple in which the husband is an American citizen and the wife an Italian citizen. They have a son and a daughter, and while the daughter is close to the parents, the son is estranged from the family and has moved to Italy and become a citizen there.
When the husband dies, his will indicates that all assets should go to the wife and daughter. The son, upset by his father’s decision, brings the matter to an Italian court with the aim of both ascertaining the validity of a will which completely excludes him and claiming his right as an heir entitled to a share of his father’s estate.
The mother, however, opposes this claim and raises questions about the Italian jurisdiction in this case.
The Italian judge may establish their jurisdiction, and potentially demonstrate that this is a case of Italian succession, in various ways. The most clear-cut way occurs when real estate assets are located in a European Member State, which is one of the conditions of the European Union’s cross-border succession regulation (EUSR).
Once jurisdiction has been established, the judge must determine which law should be applied to the case. Again, choice of law on the part of the testator may figure into the judge’s determination. EUSR and Italian private international law (I-PIL) will be consulted to understand how their application may affect the legal issues raised.
Most of the aspects will fall under the EUSR choice-of-law criteria, which in our mock case takes into consideration the choice of law of the habitual residence of the deceased, thus the Californian law.
But there are some aspects, like marital regime, that EUSR leaves up to the criteria set by a single Member State. This is also the case in our example when the judge takes under advisement aspects of the married couple’s lives.
Since the couple had lived primarily in California, I-PIL defers to California law. Given that California is one of the US states which recognizes community-property between spouses, such an application would have a significant impact on the outcome.
To simplify the conclusion of this case, we have created the following table that allows you to quickly identify the legal aspect under consideration as well as related choice-of-law criteria indicated by the European Union Succession Regulation.
| Aspects of succession in European Union
Succession Regulation |
Choice of law
(by statute) |
Choice of law
(by settlor) |
| General rule – Article 21
Causes, time and place of the opening of the succession; the determination of beneficiaries, of their respective shares; capacity to inherit; disinheritance; transfer to heirs all assets, rights and obligations of the estate, conditions and effects of the acceptance or waiver of the succession; the powers of the heirs, the executors of the wills and other administrators of the estate; liability for the debts under the succession; restrictions on the disposal of property upon death; obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries; and division of the estate – Article 23 |
HR
dd(1) |
Nationality |
| Admissibility and substantive validity of disposition of property upon death – Article 26
capacity of the person making the disposition; ban to dispose in favor of specific persons or for specific person from receiving succession property from the person making the disposition; the admissibility of representation for the purposes of making a disposition of property upon death; the interpretation of the disposition; fraud, duress, mistake and any other questions relating to the consent or intention of the person making the disposition. |
HR when the disposition was made/given | Nationality |
| “Formal” validity of dispositions of property upon death made in writing – Article 27 | Favors a will | — |
| Validity as to form of a declaration concerning acceptance or waiver – Article 28 | HR or nationality | HR of the person making the declaration |
| Admissibility, substantive validity and binding effects between the parties of heir’s agreement as to succession (13) – Article 25 | HR | Nationality (2) |
- The habitual residence is the “general rule” in EUSR. That is, the residence maintained on the date of death–HRdd in the above table. See Article 27 for the variety of options intended to favor a will.
- Here the nationality is that of the heir making an agreement. See previous note.
Cross-Border successions are notoriously intricate. To understand the latest developments in european and international law, legal expertise in this area is a must. Call My Lawyer In Italy for a free consultation today.
Read more about the I-PIL and a related Italian choice-of-law table in our post “Aspects Of Italian-American Cross-Border Succession Where Italian Private International Law Applies”.