A choice of law in inheritance law (Rechtswahl) when emigrating is a declaration in a will, joint will or inheritance contract by which a testator, under Art. 22 of the EU Succession Regulation (Erbrechtsverordnung, EuErbVO), designates the law of his or her nationality, for example German law, for the entire estate. Without it, under Art. 21 EuErbVO the law of the state in which the testator had his or her habitual residence at the time of death applies. The choice should be declared expressly; it must be made in the form of a disposition upon death or result from its provisions (Art. 22 (2) EuErbVO). It changes only the applicable inheritance law, not taxes, matrimonial property law or the treatment of land in some third states.
Anyone who emigrates often sets the course for the entire inheritance law, unnoticed, with the change of residence. This article explains who may choose what, in what form the choice becomes effective, what it achieves, what it expressly does not achieve and which mistakes often occur in practice. It is written for readers abroad as well, for example German citizens living outside Germany or foreign nationals with German connections.
The Starting Point: Law of Residence Instead of Home Law
Since 17 August 2015, the EuErbVO has connected the entire succession upon death to the testator’s habitual residence at the time of death (Art. 21 (1)). The term is interpreted under EU law and determined by an overall assessment of the circumstances of life; the Court of Justice of the European Union stresses that for the estate there can be only one habitual residence, in a single state (CJEU, judgment of 16 July 2020, C-80/19). The questions that accompany this basic rule are described in the article International inheritance law when emigrating.
An example from the case law shows how little an inner wish to return helps: by order of 14 September 2020 (21 W 59/20), the Higher Regional Court of Frankfurt am Main (Oberlandesgericht) assumed a habitual residence in China for a German testator who last lived in China. The wish to return to Germany later changed nothing about this. Under Art. 20 EuErbVO, a German court also applies the law of a state that does not belong to the EU. Anyone who lives in such a state and regulates nothing can therefore fall under foreign inheritance law that is hardly known to him or her and to his or her heirs.
The choice of law can solve this problem for the law applicable to the succession (Erbstatut), because it decouples the applicable law from the question of where the centre of life currently lies.
What Art. 22 EuErbVO Allows and What It Does Not
Art. 22 (1) EuErbVO allows a person to choose, for the succession upon death as a whole, the law of the state of which he or she is a national at the time of the choice or at the time of death. Several restrictions follow from this:
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| Question | Answer |
|---|---|
| Which law can be chosen? | only the law of a state whose nationality you hold at the time of the choice or at your death |
| What applies with several nationalities? | You can choose the law of one of these states |
| Can I choose only part of the estate? | no, the choice concerns the succession as a whole |
| Must the chosen law be EU law? | no, the law of a third state can also be home law |
| Can I choose the law of my state of residence if I am not a national there? | no |
| Can I choose the law of a state to which I have only family ties? | no, not without nationality |
For German nationals this means: you can choose German law as long as you are German or become German by the time of death. For dual nationals there is a choice between the home laws. Stateless persons are not expressly provided for in Art. 22; whether they have a right of choice through international conventions must be examined in the individual case. On how a move affects nationality, see Keeping your nationality when emigrating.
For states with several territorial legal systems, such as the United States, Art. 36 EuErbVO contains its own provisions on which territorial law applies. Advice from specialists in the country concerned is indicated here, because the connection differs from state to state.
Form: Expressly in a Disposition upon Death
Under Art. 22 (2) EuErbVO, the choice of law must be made expressly in a declaration in the form of a disposition upon death or result from the provisions of such a disposition. Dispositions in this sense are wills, joint wills and inheritance contracts. An express wording is advisable because a tacit choice from the circumstances invites dispute. The declaration of choice itself must also meet the formal requirements for a disposition upon death under the applicable law of form (Federal Court of Justice, Bundesgerichtshof, judgment of 21 January 2026, IV ZR 40/25). Whether the will itself is formally valid is determined, for wills, by the Hague Convention on the Form of Testamentary Dispositions of 1961 (Art. 75 (1) EuErbVO), for inheritance contracts by Art. 27 EuErbVO.
A wording can say, in substance, that for the succession upon death in the entire estate the law of the Federal Republic of Germany, to which the testator belongs, is chosen. This is an example and not a model for your own case. Whether additional clauses are needed depends on the family situation and the assets.
Practical notes on form:
- The choice of law can be included in a new will or added by a supplement to an existing one. The form of the supplement follows the rules for the disposition in which it is included.
- Notarial recording is not required for the choice of law; a handwritten will can contain it. The notary ensures clear wording, evidentiary value and registration in the Central Register of Wills (Zentrales Testamentsregister).
- Amendment and revocation of the choice of law must, under Art. 22 (4) EuErbVO, comply with the formal rules for the amendment or revocation of a disposition upon death.
- The substantive validity of the choice of law is decided under Art. 22 (3) by the chosen law.
Costs: a choice of law in a notarial deed is valued under § 104 (2) of the Court and Notary Costs Act (GNotKG) at 30 percent of the value to be used as a basis for dispositions upon death under § 102 GNotKG. The actual fees depend on the value of the estate and the scope of the deed. There is no deadline for the choice of law; it must, however, be declared during one’s lifetime in an effective disposition and takes effect only upon succession.
When a Choice of Law Makes Sense
A review is advisable above all in these constellations:
- You are planning to move away or have already moved away and want a familiar law to apply.
- You keep a domicile in several places, so that the habitual residence may become disputed.
- You live in Germany but are a national of another state and want its law to be applied.
- Your disposition builds on German institutions such as executorship (Testamentsvollstreckung), the Berlin-style will (Berliner Testament) or a succession by a first and a subsequent heir (Vor- und Nacherbfolge), which the law of residence does not know or shapes differently.
It is unnecessary if your habitual residence remains in Germany and German law applies anyway. Even then it can be useful in case of a later move. Waiving a choice of law is also permissible; under Art. 21 EuErbVO the law of the state of habitual residence then applies. Whether this law fits the family situation must be assessed by an adviser on the spot.
What the Choice of Law Achieves
The chosen law applies as the law applicable to the succession for the succession as a whole. Under Art. 23 EuErbVO this includes in particular the designation of the heirs, the shares, acceptance and disclaimer, liability for estate debts and compulsory portion rights. If you choose German law, the rules of the German Civil Code (BGB) apply in this area. For the effects on compulsory portion claims with foreign assets see Compulsory portion law and foreign assets.
What the Choice of Law Does Not Achieve
The choice of law is often overestimated. It does not achieve:
- No change of jurisdiction. If the last habitual residence was in a Member State, its courts in principle remain competent under Art. 4 EuErbVO and apply the chosen law. If it was in a third state, German courts may have jurisdiction under the conditions of Art. 10 EuErbVO; the court of the third state, by contrast, follows its own law and is not bound by Art. 22. If the law of a Member State was chosen, the parties concerned can agree on the jurisdiction of its courts (Art. 5 to 7 EuErbVO); the testator cannot determine that alone in the will.
- No binding effect on third states. States outside the EuErbVO follow their own conflict-of-laws rules. Especially for land, the law of the place where it is situated may apply. This can lead to a split of the estate (Nachlassspaltung), where different parts of the estate are treated under different laws. An adviser in the state where the property is located is indispensable here.
- No tax effect. Inheritance tax follows its own rules. Under § 2 Inheritance Tax Act (ErbStG), Germany can also tax emigrants; foreign states can tax in addition. See Inheritance tax and double taxation treaties.
- No matrimonial property law. The choice of law concerns inheritance law. The matrimonial property law of the spouses is a separate question regulated by the Matrimonial Property Regulation (EU) 2016/1103. Both levels should be coordinated, see Matrimonial property clause in an international marriage contract.
- No cure of defects of form. Whether the will itself is formally valid is governed by the Hague Convention on the Form of Testamentary Dispositions (Art. 75 (1) EuErbVO), for inheritance contracts by Art. 27 EuErbVO. On form and practice see Will when living abroad.
- No absoluteness. Under Art. 35 EuErbVO, the application of individual provisions of the chosen law can be refused if they are manifestly incompatible with the public policy of the state of the court.
Conditional Choice of Law and Structuring Wishes
In advisory practice it is occasionally considered to make the choice of law subject to a condition, for example that German law is to apply only if the spouse has predeceased. This can make sense if different laws seem more favourable for the first and the second succession. The EuErbVO does not expressly regulate conditions. There is much to suggest that it must be possible to establish clearly at the time of death which law applies. Conditions whose occurrence is determined only after the death, for example a disclaimer by a person involved, therefore carry a considerable risk. A clarification of the question by the highest court is not known. Anyone considering a conditional choice should formulate it only with legal and notarial support and provide a fallback solution.
Married Couples: Joint Will and Inheritance Contract
For married couples the question arises whether a choice of law contained in a joint will or inheritance contract can be revoked unilaterally. For inheritance contracts, Art. 25 EuErbVO contains its own rules on admissibility, substantive validity and binding effect; Art. 25 (3) allows a choice of law for these questions. Anyone who wants to ensure that the choice is not changed unilaterally should regulate the binding effect expressly. For further reading: Berlin-style will with a foreign connection.
Dispositions from the Time before August 2015
If you made a will before 17 August 2015, transitional rules apply. Under Art. 83 (2) EuErbVO, a choice of law made before that date is effective if it meets the requirements of Chapter III or was effective under the private international law then in force in the state of habitual residence or in a home state of the testator; the Federal Court of Justice has also applied the provision to inheritance contracts (order of 10 July 2019, IV ZB 22/18). Art. 83 (4) EuErbVO, under certain conditions, deems a choice of law to have been made if the disposition was made under a law that could have been chosen. How far this fiction reaches is not conclusively settled. You should therefore review old dispositions and, where appropriate, supplement them expressly.
Typical Mistakes
Choice of law not express or in the wrong document. A note in a covering letter is not sufficient. The choice belongs in the disposition itself.
Nationality not checked. The choice of law requires that you belong to the state at the time of the choice or at your death. In case of naturalisation in the destination state or loss of nationality, the situation changes.
Several dispositions in several countries. Anyone who makes a further will abroad risks that the earlier disposition is revoked in whole or in part. Dispositions must be coordinated.
Equating it with tax planning. The choice of inheritance law does not change inheritance tax. For tax questions that are unclear or in flux, the principle applies: before implementation, a binding ruling can be applied for from the tax office under § 89 (2) Fiscal Code (AO); a fee may be charged for it under § 89 (3) to (7) AO. Where there is a foreign connection, a ruling in the other state can usefully supplement this.
Leaving foreign law unchecked. Whether the destination country recognises the choice and how local authorities deal with a German will should be clarified by an adviser on the spot.
Conclusion
The choice of law under Art. 22 EuErbVO is the central instrument for securing German inheritance law for the entire estate when emigrating. It must be declared in a disposition upon death or result from its provisions, so it should be worded expressly, requires the corresponding nationality and takes effect only for the law applicable to the succession. Jurisdiction, taxes, matrimonial property law and the treatment of real estate in third states remain to be examined separately. Anyone who acts before or shortly after the move creates clarity; you should review existing dispositions for an effective choice of law.
Frequently Asked Questions
Must the choice of law be notarially recorded?
No. It must be declared in the form of a disposition upon death. A handwritten will can contain it. Notarial recording does, however, offer more clarity and evidentiary value.
Can I change or revoke the choice of law later?
Yes, in the form that applies to the amendment and revocation of dispositions upon death (Art. 22 (4) EuErbVO). In the case of joint wills and inheritance contracts, the binding effect on those involved may stand in the way.
Does the choice of law apply if I later change my nationality?
What matters is that you belong to the chosen state at the time of the choice of law or at the time of death. Check this with every change of nationality.
Can I choose German law only for the property in Germany?
No. The choice concerns the succession as a whole. Art. 22 does not provide for a split by asset.
Does the choice of law change anything about inheritance tax?
No. Inheritance tax follows the tax law of the respective state. Germany can tax even after a move, foreign states in addition.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise emigrants and families with a foreign connection on the choice of law in inheritance law, from reviewing the applicable law through structuring the will and inheritance contract to coordination with advisers abroad. Dr. Fiala has published extensively on questions of emigration and asset protection. Contact the firm without obligation to have your individual situation discussed in an initial consultation.
