Will Regulation 650/2012 Simplify Cross-Border Successions in Europe?

Abstract

This paper addresses recent changes in European succession law brought about by the European Commission’s "Regulation on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession." One of the most important issues that this Regulation addresses is the determination of the law applicable to a given succession for nationals of one member state with habitual residence in another member state. The Regulation provides that successions for those who die in this situation are governed by the law of the state in which they had their habitual residence at death. This paper questions whether the Regulation will simplify and reduce transaction costs in cross-border successions from two perspectives: First, from the perspective of whether the Regulation will increase or decrease the application of a given state's substantive succession law, and, second, from the perspective of the effect of its choice of laws rule on property entitlements given the variation in forced inheritance rules and clawback provisions across EU member states. These issues raise important questions about whether the Regulation will bring about the simplicity its drafters seek.