Division of the estate

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The division of the estate is a term from the field of international private law (IPR) and describes the case that various assets of an estate are subject to different legal systems in terms of inheritance law.

The opposite term is the estate unit (application of only one legal system, regardless of the location of the assets).

General

In the case of a division of an estate, a statute on the location of the estate generally applies, at least in part . In fact, immovable property ( land and land rights ) is usually the reason for a division of the estate.

The legal reasons for splitting the estate may lie

  1. in a choice of law
  2. in your own conflict of laws (original or out of consideration for foreign law)
  3. in the referenced conflict of laws (partial referral or referral )
  4. in applicable property law (example inheritance law )
  5. also in the rules on international jurisdiction (establishment or exclusion of jurisdiction for certain assets)

States with a distinction between movable and immovable property in the conflict of laws are, for example, the countries of common law .

Splitting up the estate means that the relevant assets must be treated separately (for example, possibly also within the framework of the compulsory portion ).

The splitting up of the estate is based on the perspective of only one (original) state, whereby different legal systems apply. If, on the other hand, it is a question of the divergence of the perspectives of different states in the specific case of inheritance, one speaks sometimes of an estate conflict or estate collision .

European Union

The European international inheritance law is u. a. for Germany and Austria since 2015 basically regulated in Regulation (EU) No. 650/2012 (Inheritance Law Regulation, EuErbVO). It is universally applicable (Art. 20 EuErbVO), but does not apply to Denmark, Ireland and the United Kingdom. The EuErbVO is based on the principle of inheritance unity, according to which the inheritance statute forms an overall statute and the entire case of inheritance is uniformly subject to one and the same legal system, regardless of the states in which the assets are located. The applicable inheritance statute is either the law uniformly selected according to Art. 22 EuErbVO, otherwise according to Art. 21 EuErbVO the law of the state in which the testator had his habitual residence at the time of his death.

Choice of law

Since August 17, 2015, a choice of law for legal succession due to death is not permitted (Art. 83 Para. 2, Art. 22 EuErbVO).

Own conflict of laws

The EuErbVO does not affect existing international agreements (Art. 75 (1) EuErbVO). These can provide for an estate split.

  • Case study: In addition to movable property, the estate of a German citizen also includes property in Turkey. In this case, the German-Turkish inheritance agreement of 1929 applies, Section 14 of which defines German law for movable property and Turkish law for property as the inheritance statute.
  • See also Article 28, Paragraph 3 of the German-Soviet Consular Treaty of 1958 (valid for the successor states of the Soviet Union excluding the Baltic States).

In the past, according to German IPR, “special regulations” of a conflict of law nature from the right of residence as an individual statute could break through the inheritance statute that was inherited. Austria pointed at erblosem estate or inheritance of the tax authorities to the respective situs Statute ( Kaduzitäts statut).

Partial referral or referral

If the EuErbVO refers to the law of a third country whose conflict of laws partially refers back or further (in particular for property), Art. 34 EuErbVO accepts this reference insofar as it relates to the law of a member state or the law of another third country, which is applies own law.

  • Case study: The estate of a person habitually resident in England includes property in Germany. In this case, Art. 21 EuErbVO refers to English law, whose conflict of laws for immovable property includes a reference back to German law. For the question of the qualification of a property right as movable or immovable, English law refers to the statute of location (qualification reference).
  • Case study: The estate of a person habitually resident in Switzerland includes property in England. In this case, Art. 21 EuErbVO refers to Swiss law, which, in terms of conflict of laws, determines one's own material law on inheritance (Art. 90 Para. 1 PILA), i.e. generally accepts the referral, but excludes own jurisdiction for the property (Art. 86 Para . 2 PILA). From the point of view of the EuErbVO, this exclusion of Swiss jurisdiction means a referral to English law for the property (Art. 34 Para. 1 lit. b EuErbVO).

Property law

Special regulations of the state of residence, which are to apply regardless of the inheritance statute for economic, family or social reasons, apply (Art. 30 EuErbVO).

  • Case study: The estate of a person habitually resident in Switzerland includes an agricultural farm in Germany. In this case, Art. 21 EuErbVO refers to Swiss law. However, the German court law breaks the Swiss inheritance statute.

International jurisdiction

  • Justification of jurisdiction only for certain assets because they are located in one's own territory: Art. 10 Para. 2 EuErbVO
  • Optional exclusion of jurisdiction for certain assets because they are located in foreign territory: Art. 12 EuErbVO

Switzerland

The possible reasons for splitting up an estate under Swiss law are similar.

  • Split law: Art. 90 para. 2, Art. 91 para. 2 PILA (see Art. 87 para. 2 PILA)
  • State contractual conflict of laws: z. B. Treaty Switzerland-USA of 1850, Art. VI
  • Partial referral back or further referral: Art. 91 Para. 1, Art. 14 PILA
  • Property law
  • International jurisdiction: Justification Art. 88, 89 PILA; Exclusion from Art. 86 para. 2 PILA

Individual evidence

  1. ↑ further states names kanzlei-springmann.de/internationales-erbrecht ; Details: internationales-erbrecht.de
  2. ↑ RGBl. 1930 II pp. 747, 758, 761
  3. ↑ BGBl. 1959 II p. 232, 239
  4. ↑ Reference list B 2018 p. 212
  5. ↑ Art. 28 EGBGB (1896), Art. 3 Para. 3 EGBGB (1986), Art. 3a Para. 2 EGBGB (2008)
  6. ↑ BGHZ 50, 63 (1968)
  7. ↑ Section 29 of the IPR Act (1978); ECLI : DE: OLGMUEN : 2011: 0526.31WX78.11.0A
  8. ↑ Earl Nelson v. Lord Bridport , [1846] 8 Beav. 547
  9. ^ In re Berchtold , [1923] 1 Ch. 192
  10. ↑ according to BGH , MDR 1965, 818
  11. ↑ in Switzerland itself: Federal Act on Peasant Land Law (BGBB) of October 4, 1991