Successions of EU residents with third country rules

In recent years, international mobility has become a structural reality. An increasing number of non-EU citizens are permanently residing in an EU country, purchasing property, building assets, and maintaining family and professional relationships in Europe. This evolution has necessarily raised new and complex legal issues, especially regarding inheritance. One of these has recently been decisively addressed by the Court of Justice of the European Union, with a ruling that will profoundly impact the inheritance planning of non-EU citizens residing in the EU.

The central theme concerns the interaction between EU Regulation no. 650/2012 and the inheritance laws of non-EU countries, in particular the possibility for a non-European citizen, but resident in a Member State, to choose the law of his or her country of origin as the governing law of his or her succession.

• The regulatory framework: the European Regulation on succession
• The concrete case: Polish notary and Ukrainian citizen
• The decision of the Court of Justice
• Practical consequences for non-EU citizens residing in the Union
• The importance of the international will
• Successions between the EU, the United Kingdom and the United States
• A turning point for legal certainty

The regulatory framework: the European Regulation on succession

EU Regulation 650/2012, which came into full force in August 2015, represented a true revolution in European international inheritance law. Its primary objective is to unify the criteria for jurisdiction, applicable law, and recognition of decisions in inheritance matters within the Union.

The core principle underlying the Regulation is that of the deceased's habitual residence at the time of death. Pursuant to Article 21, unless otherwise permitted, the entire succession is governed by the law of the State in which the deceased had his or her habitual residence, regardless of where the assets are located.

However, the Regulation also introduces an important exception: Article 22 allows the individual to choose the law of the State of which he or she is a national as the law applicable to his or her succession, by means of a specific declaration contained in a will or other valid document.

And it is precisely on this point that the controversy which is the subject of the recent decision of the Court of Justice arises.

The concrete case: Polish notary and Ukrainian citizen

The case stems from a Polish notary's refusal to draw up a will for a Ukrainian citizen, owner of property in Poland and permanent resident in an EU member state. The woman intended to govern her succession under Ukrainian law, rather than that of her country of residence.

The notary based his refusal on a restrictive interpretation of Article 22 of Regulation 650/2012, considering that the right to choose national law was reserved exclusively to citizens of the Member States of the European Union.

The matter was then referred to the Court of Justice of the EU, which was asked to clarify whether a citizen of a third country (such as Ukraine), residing in an EU country, can also exercise the "professio iuris" in favor of his own national law.

The decision of the Court of Justice

In a ruling of great legal significance, the Court of Justice has established that Article 22 of Regulation 650/2012 also applies to citizens of non-EU countries, provided they reside in a Member State.

According to the Luxembourg judges, the provision refers generically to the "law of the state of which the person is a national," without making any distinction between EU and non-EU citizenship. Consequently, any citizen, even non-EU, can choose the law of their country of origin to regulate their succession, if resident in the Union.

The Court clarified that:

• the choice of national law is a neutral instrument, not linked to the status of European citizen;
• excluding citizens of third countries would mean introducing discrimination not provided for by the Regulation;
• The aim of the Regulation is to ensure legal certainty, predictability and respect for the deceased's wishes, regardless of citizenship.

Practical consequences for non-EU citizens residing in the Union

This ruling has a huge impact on the estate planning of millions of people. According to the Court's definitive interpretation, a citizen of Ukraine, Russia, the United States, Morocco, Tunisia, Argentina, or any other non-EU country residing in Italy, France, Germany, Spain, or Poland can freely decide whether to subject their succession to the law of their country of residence or the law of their country of citizenship.

This is an essential freedom, because inheritance systems vary profoundly from country to country: the legitimate portions, the rights of spouses, the position of children, the admissibility of inheritance agreements, the methods of devolution of the inheritance, and even the tax treatment vary.

By choosing national law, non-EU citizens can maintain a legal connection with their home country, avoiding their succession being automatically regulated by a law with which they may have no cultural or family ties.

The importance of the international will

The Court's ruling greatly strengthens the value of wills as a tool for international estate planning. Without an express choice, the law of the country of habitual residence at the time of death will continue to apply. This means that:

• an American citizen residing in Italy, without a will, will automatically be subject to Italian inheritance law;
• a Moroccan citizen residing in France, without planning, will fall under French law;
• with the possibility of conflicts between family expectations, religious norms and civil rules.

Through a correctly drafted will, however, it is possible to:

• choose the national law of your country of citizenship;
• organize the generational transition more effectively;
• reduce the risk of disputes between heirs residing in different countries;
• ensure greater legal stability for notarial deeds and cross-border successions.

Successions between the EU, the United Kingdom and the United States

The ruling is particularly relevant for those living between Europe, the United Kingdom, and the United States. After Brexit, the United Kingdom is effectively a third country with respect to the EU. Even a British citizen permanently resident in an EU country can now choose to apply English law to their succession rather than that of their European country of residence.

The same applies to US citizens and all non-EU residents who own property in Europe.

A turning point for legal certainty

The Court of Justice's decision represents a historic step forward for European inheritance law . It definitively overcomes any restrictive interpretation that limited the freedom to choose the law to EU citizens only.

Today, the principle is clear: citizenship matters, not membership in the Union. Anyone residing in Europe, even if a citizen of a third country, has the full right to determine the law governing their succession.

International successions are expected to increase exponentially in the coming years. Globalization, job mobility, dual residency, and assets spread across multiple countries make informed and advance planning essential.

The recent opening of the Court of Justice of the European Union strengthens the rights of non-EU citizens and requires renewed attention to the drafting of wills and the management of cross-border inheritances.

For those who live and invest in Europe without being citizens of the Union, choosing the right law for their succession today means protecting their assets and guaranteeing peace of mind to their heirs tomorrow.

Relying on experienced professionals, such as those at the Agenzia delle Successioni, means avoiding mistakes that could invalidate a will, generate conflicts between heirs, or lead to the inadvertent application of an unfavorable law.

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