Prior and Subsequent Inheritance with International Assets: What Applies Abroad

Published on 08.10.2026

Prior and Subsequent Heirs Abroad

Anyone who wants to provide for a spouse or children in the long term often uses a prior and subsequent inheritance (Vor- und Nacherbschaft): the surviving partner becomes the prior heir (Vorerbe), and the children become the subsequent heirs (Nacherben). If assets are located abroad or someone lives abroad, this well-proven instrument can involve considerable uncertainty. A prior and subsequent inheritance with international assets raises three questions: Which succession law applies in the first place, is the structure recognised abroad, and how often is inheritance tax payable? The answers are based on German law (as at September 2026). For the law of other states, a local adviser must be consulted.

In Brief: What Prior and Subsequent Inheritance Means

In a prior and subsequent inheritance (Sections 2100 et seq. of the German Civil Code, Bürgerliches Gesetzbuch, BGB), the testator appoints two heirs one after the other. The prior heir becomes heir when the succession occurs, the subsequent heir only when the subsequent succession occurs (Nacherbfall), as a rule on the death of the prior heir (Section 2106 BGB). Both inherit from the same testator and do not form a community of heirs. Until the subsequent succession occurs, the subsequent heir has an expectant right (Anwartschaftsrecht), which in principle can be inherited (Section 2108 (2) BGB).

Distinction from the Berlin will (Berliner Testament): If spouses appoint each other as sole heirs and designate the children as heirs of the survivor, the children are final heirs (Schlusserben), not subsequent heirs. The survivor is then the full heir (so-called unity solution, Einheitslösung). Only if a prior and subsequent inheritance is expressly ordered (separation solution, Trennungslösung) do the assets of the first spouse to die remain a separate estate, kept apart from the survivor’s own assets.

To distinguish it from related arrangements:

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Rights and Duties of the Prior Heir and the Subsequent Heir

The prior heir may use and manage the estate but must preserve its substance for the subsequent heir. Dispositions of real property and gratuitous dispositions become ineffective when the subsequent succession occurs, insofar as they impair the subsequent heir’s rights (Section 2113 BGB); gifts made in fulfilment of a moral duty remain possible. The testator can largely release the prior heir from these restrictions (Section 2136 BGB, “exempted prior inheritance”, befreite Vorerbschaft); however, gratuitous dispositions remain prohibited even for an exempted prior heir (Section 2113 (2) BGB), and whatever still exists when the subsequent succession occurs must be handed over. The subsequent heir can demand information about the composition of the estate and, if it is at risk, demand security (Sections 2127, 2128 BGB).

Two points are often overlooked in practice:

• Compulsory portion: Persons entitled to a compulsory portion (Pflichtteil) are not put off until the subsequent succession. A person entitled to a compulsory portion who is appointed as prior heir may disclaim the inheritance and claim the compulsory portion, because the appointment of a subsequent heir is a restriction (Section 2306 (1) BGB).
• Thirty-year limit: The appointment of a subsequent heir becomes ineffective 30 years after the succession if the subsequent succession has not occurred by then. Exceptions apply, for example, to events relating to a prior or subsequent heir who is alive when the succession occurs (Section 2109 BGB).

Which Succession Law Applies in Cross-Border Cases?

Within the EU (excluding Denmark and Ireland), the EU Succession Regulation (Europäische Erbrechtsverordnung, EuErbVO, Regulation (EU) No 650/2012) determines the applicable law for successions since 17 August 2015. Under Art. 21 (1), the succession as a whole is governed by the law of the state in which the deceased had his or her habitual residence at the time of death. Anyone who moves away from Germany may therefore change their succession law without noticing. When German law nevertheless applies is shown in our article on German succession law when living abroad.

This has three consequences for a prior and subsequent inheritance:

1. The law governing succession (Erbstatut) decides whether the structure exists. If the estate is subject to a law that does not recognise subsequent succession, or recognises it only to a limited extent, the provision may come to nothing or be reinterpreted. Whether and how is assessed by the foreign adviser.
2. The first testator is decisive. The subsequent succession is governed by the law applicable to the succession of the person who ordered it, not by the law of the prior heir. If the prior heir later moves, this does not change the subsequent succession to the first spouse to die. It does, however, change the law governing the prior heir’s own estate.
3. A choice of law can create clarity. Under Art. 22 (1) EuErbVO, a testator can choose the law of the state whose nationality he or she possesses at the time of making the choice or at the time of death. A German national can thus choose German succession law; the choice must be made expressly in a disposition of property upon death or be demonstrated by its terms (Art. 22 (2) EuErbVO), but an express declaration is preferable. The choice applies to the entire estate, not to individual countries. More on drafting can be found in our article on wills when living abroad.

Scission of the Estate and Third Countries: Where the Structure Reaches Its Limits

The EuErbVO follows the principle of the unity of the estate. However, this only applies within its scope. If assets, above all a property, are located in a third country, its courts and land registries do not apply the Regulation but their own private international succession law. Many states subject real property to the law of the place where it is located. The estate is then in effect split: from a German perspective, the law governing succession applies uniformly, while in the state where the property is located, that state’s own law applies to the property. Bilateral agreements that a Member State had concluded before the Regulation remain unaffected under Art. 75 (1) EuErbVO, so that they may take precedence in individual cases.

Within the Regulation itself, three mechanisms must be kept apart.

Renvoi (Art. 34 EuErbVO)

If the Regulation leads to the law of a third country, for example because the deceased last lived there, that country’s conflict of laws rules must also be examined. If they refer back to the law of a Member State or on to the law of another third country that would apply its own law, this reference is followed (Art. 34 (1) EuErbVO). If the third country’s law treats real property according to its location and movable assets according to domicile, this alone can lead to scission. If, on the other hand, the deceased made a choice of law under Art. 22 EuErbVO, the chosen law continues to apply: for the choice of law and for the special rules under Art. 30, Art. 34 (2) EuErbVO excludes renvoi.

Property Law and Registers (Art. 1 (2) (k) and (l) EuErbVO)

Excluded from the Regulation are the nature of rights in rem (point (k)) and the recording of rights in a register, including the requirements for and effects of such recording (point (l)). If the state where the property is located does not recognise a prior inheritance comparable to the German one, its property and registration law decides how the prior heir’s restriction appears in the land register, for example whether a note like the German note of subsequent inheritance (Nacherbenvermerk, Section 51 of the German Land Register Code, GBO) is possible. For rights invoked in a Member State, Art. 31 EuErbVO provides that a right in rem unknown there is to be adapted to the closest equivalent right. The CJEU also interprets the exclusion narrowly: a Member State may not refuse to recognise the effects of a legacy with direct proprietary effect under the law governing succession solely because its own law does not recognise this form of transfer (judgment of 12 October 2017, C-218/16, Kubicka).

Special Rules for Certain Assets (Art. 30 EuErbVO)

Art. 30 EuErbVO leaves unaffected special rules of the state where the assets are located that, for economic, family or social considerations, concern the succession to certain immovable property, certain enterprises or other special categories of assets, provided that under the law of that state they apply irrespective of the law governing succession. The wording refers to the law “of a state” and is not expressly limited to Member States. Applying it to assets in third countries is therefore arguable in principle. According to Recital 54, however, the provision must be interpreted narrowly: conflict of laws rules that simply subject real property to a different law than movable assets are not such special rules. These cases belong to Art. 34 and the law of the state where the property is located, not to Art. 30.

The three mechanisms operate at different points:

• Art. 34 concerns the question of which law applies overall if the Regulation leads to the law of a third country. That country’s conflict of laws rules are then also examined.
• Art. 1 (2) (k) and (l) do not concern succession but the question of which type of right in rem the state where the property is located recognises and how it appears in the register. They therefore clarify how a subsequent inheritance is reflected in the land register, not who inherits.
• Art. 30, by contrast, intervenes in the succession itself: for a particular asset, a special rule of the state where it is located decides who receives it, even if the law governing succession provides otherwise. If the law whose special rule is to be applied under Art. 30 in turn refers to another law, this reference is disregarded (Art. 34 (2) EuErbVO).

Which rules a Member State regards as such special rules is published on the European e-Justice Portal on the basis of information provided by the Member States. Examples from there:

• Germany: The law on undivided inheritance of farms (Anerbenrecht), in particular the Farm Succession Code (Höfeordnung) in Hamburg, Lower Saxony, North Rhine-Westphalia and Schleswig-Holstein as well as the farm succession acts of certain other federal states, allows a farm to pass undivided to a single farm heir, separately from the rest of the estate. The other co-heirs receive lower settlements than in a normal division of the estate. According to the information on the e-Justice Portal, these rules apply irrespective of the law governing succession.
• Austria: If a condominium flat belongs jointly to two partners (owner partnership, Eigentümerpartnerschaft), the deceased’s share passes by operation of law directly to the surviving partner, unless the survivor declines the acquisition. In return, the survivor pays the estate (Verlassenschaft) a takeover price (Übernahmspreis), in principle half of the market value of the share, and under certain conditions only a quarter (Section 14 of the Austrian Condominium Act, WEG 2002).
• Hungary: Anyone who is to receive agricultural and forestry land (such as arable land, vineyards, forest) by will requires approval from the agricultural authority. It examines whether the beneficiary is entitled to acquire and whether the will is being used to circumvent the acquisition restrictions of Hungarian land transfer law. Intestate succession is not covered by this.

Example (fictitious): Thomas lives in Munich and has chosen German succession law. Together with his wife Petra, he owns a condominium flat in Salzburg as an owner partnership. In his will, he appoints Petra as prior heir and his children from his first marriage as subsequent heirs. If Thomas dies, the succession as a whole is governed by German law. However, Petra acquires his share in the Salzburg flat under Section 14 WEG 2002 directly by operation of law as owner, not as prior heir. The flat is thus removed from the subsequent succession; only the takeover price that Petra must pay falls into the estate. When the subsequent succession occurs, the children therefore cannot access the flat, but only whatever remains of the takeover price in the estate. Anyone who wants to avoid this must arrange the ownership of the flat during their lifetime with an Austrian adviser.

Similarly, a special rule for a farm or agricultural land can override the ordered subsequent succession: a subsequent succession to Hungarian arable land ordered by will, for example, may fail because the subsequent heir does not obtain the necessary approval.

What This Means for a Holiday Home in a Third Country

For an ordinary holiday home, Art. 30 only applies if the state where it is located has a special rule specifically for such properties; that is the exception. The question is usually decided elsewhere: whether the state where the property is located applies its own succession law to real property and what its property and registration law permits. In practical terms, this means that the German subsequent inheritance may not apply to a holiday home outside the EU. The prior heir may be treated there like a full heir and be able to dispose of the property, while the subsequent heir is left only with claims against the prior heir. Compulsory portion rights then also depend on the respective law; see our article on compulsory portion rights over foreign assets. This is a possibility, not a rule. Whether it turns out this way depends on the law of the state in which the assets are located.

Will and Form: Check Joint Dispositions

The subsequent succession is usually set out in a joint will or an inheritance contract (Erbvertrag). Under Art. 24 EuErbVO, the admissibility and substantive validity of a disposition are governed by the law that would have been applicable if the person making it had died on the day of making it; for inheritance contracts, Art. 25 EuErbVO additionally governs the binding effects. This connecting factor creates predictability but does not replace examining whether registers, banks and authorities abroad will accept the disposition in this form. How joint wills are to be classified in this respect is assessed differently. Whether formal requirements, witnesses or a local acceptance of the inheritance are required in the specific country is clarified by the foreign adviser. In marriages with a foreign connection, the matrimonial property regime also plays a role; see our article on equalisation of accrued gains in an international marriage.

Proof of Status as Heir: Certificate of Inheritance, Certificate of Succession, Land Register

A prior heir must prove his or her status. The certificate of inheritance (Erbschein) for the prior heir must state the subsequent succession, the conditions for its occurrence and the subsequent heir (Section 352b of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction, FamFG); any exemption of the prior heir must also be stated. When the prior heir is registered in the land register, the note of subsequent inheritance is entered ex officio (Section 51 GBO). It protects the subsequent heir against acquisition in good faith by third parties.

Abroad, this is more difficult. The European Certificate of Succession (ECS, Europäisches Nachlasszeugnis) certifies heirs, legatees with direct rights, executors and administrators of the estate in the Member States that participate in the EuErbVO (i.e. not in Denmark and Ireland). Under Art. 68 (n) EuErbVO, it states the restrictions on the rights of the heirs to which they are subject under the law governing succession or under the disposition. Anyone who makes payments or acquires assets on the basis of the ECS is protected under Art. 69 (3) and (4) EuErbVO, unless he or she knew of its inaccuracy or was unaware of it due to gross negligence. Certified copies are valid for only six months (Art. 70 (3) EuErbVO). For the subsequent succession, the subsequent heir needs his or her own proof; the right to apply only arises when the subsequent succession occurs. Whether the ECS or a German certificate of inheritance is recognised in a third country depends on the law there. On jurisdiction, see our article on the probate court where the deceased lived abroad.

One practical risk lies in the register: a German note of subsequent inheritance does not automatically exist in a foreign land register. Whether a foreign register recognises the subsequent inheritance or whether acquisition in good faith is possible is a question for the state where the property is located.

Inheritance Tax: Two Successions, Possibly Several States

For tax purposes, a prior and subsequent inheritance involves two acquisitions.

German rules: The prior heir is treated as heir (Section 6 (1) of the German Inheritance and Gift Tax Act, Erbschaftsteuer- und Schenkungsteuergesetz, ErbStG). When the subsequent succession occurs, the tax arises for the subsequent heir (Section 9 (1) no. 1 (h) ErbStG). The subsequent heir’s acquisition is in principle taxed as deriving from the prior heir, but on application according to the subsequent heir’s relationship to the testator (Section 6 (2) ErbStG). This option is often decisive if children become subsequent heirs and the tax class in relation to the first testator is more favourable than in relation to the prior heir. In addition, where the same assets are acquired more than once within ten years, a reduction under Section 27 ErbStG may be available if persons in tax class I acquire one after the other; it is graduated from 50 percent where the interval is up to one year down to ten percent where it is more than eight and up to ten years. Under Section 16 ErbStG, the allowances in the case of unlimited tax liability include EUR 500,000 for spouses and EUR 400,000 for children.

Cross-border aspects: Anyone who has a residence or habitual abode in Germany has unlimited tax liability; German nationals remain residents for tax purposes for five years after moving away (Section 2 (1) no. 1 ErbStG). Otherwise, only domestic assets are taxable. In addition, foreign states may levy inheritance tax, and they may do so on each of the two successions. A foreign tax can be credited against German tax under the conditions of Section 21 ErbStG unless a treaty takes precedence; an application is required for this. How a state classifies the subsequent succession for tax purposes is decided by its law. In the worst case, the transfer to the subsequent heir is taxed again in full there without the German relief rules applying. An overview of treaties is provided in our article on inheritance tax and double taxation treaties.

Deadlines: The acquisition must in principle be notified to the German tax office within three months of becoming aware of it (Section 30 ErbStG), even if the assets are located abroad. The period for disclaiming the inheritance is six weeks; it is extended to six months if the deceased had his or her last residence only abroad or the heir is staying abroad when the period begins (Section 1944 BGB). Deadlines for tax returns abroad depend on the law there, may be shorter and run in parallel.

Typical Mistakes in Practice

• German template for all countries: A joint will with prior and subsequent succession is no longer reviewed after a move or the purchase of a property.
• Choice of law forgotten or unclear: Without a choice of law, the succession law of the new state of residence may apply.
• Foreign property “read into” the subsequent inheritance: Without a local review, it is unclear whether the subsequent succession has effect there.
• Tax liquidity not planned: Two successions can trigger two tax payments in different countries. For a foreign property, the real estate transfer tax side should be taken into account; see our article on real estate transfer tax on foreign property.
• Subsequent succession not documented: If the prior heir dies abroad, the subsequent heir often does not know where accounts and properties are located; on real property abroad, see our article on inheriting property abroad.
• Exemption overlooked: If the prior heir is largely exempted, he or she can dispose of assets abroad without the subsequent heir finding out early on.

Example (fictitious): Karl and Renate live in Freiburg, have two children and a holiday home in a third country. They appoint each other as prior heirs and the children as subsequent heirs. After Karl’s death, Renate later moves permanently to another EU country. The subsequent succession to Karl continues to be governed by the law applicable to his succession. For the holiday home, on the other hand, the law of the state where it is located may be decisive, and under that law the subsequent heir may not be protected. Without a local review, this remains open.

Drafting: What the Disposition Should Expressly Provide For

In addition to the choice of law, a disposition with a foreign connection should clearly specify who is prior heir and who is subsequent heir, and who steps in as substitute heir if the subsequent heir dies before the prior heir or drops out. The event triggering the subsequent succession must be clearly defined; the death of the prior heir is customary, but other events that can be established with certainty, such as remarriage, are also conceivable. It must also be stipulated whether and to what extent the prior heir is exempted and whether an executor (Testamentsvollstrecker) is to monitor compliance. If shares in a company form part of the estate, the articles of association and the disposition must be consistent, and the relief rules of Sections 13a, 13b ErbStG must be examined separately for both acquisitions; see our article on business succession when a shareholder moves abroad. Multi-stage subsequent successions lead to a further acquisition at each stage and come up against the limit of Section 2109 BGB.

Alternatives to Subsequent Inheritance for Foreign Assets

Where subsequent succession abroad is uncertain, other routes may be considered depending on the objective, always after examining the relevant law:

• For the foreign assets, a legacy, a subsequent legacy (Nachvermächtnis, treated in the same way as a subsequent inheritance for tax purposes, Section 6 (4) ErbStG) or a usufruct.
• Separate, coordinated dispositions for individual countries so that the wills do not contradict each other.
• Tying up assets through a structure such as a family foundation instead of through succession rules.
• Wills for disabled persons (Behindertentestament) and similar cases in which prior and subsequent inheritance is particularly common; see our article on wills for disabled persons when living abroad.

Conclusion

Prior and subsequent inheritance is a powerful instrument, but it does not work automatically where international assets are involved. After every move abroad, property purchase or change of nationality, check which law applies, whether the choice of law and the disposition are still appropriate, how the subsequent succession is treated abroad and how many taxable events may arise. For questions of foreign law, a local adviser is required.

Frequently Asked Questions

Does the German prior and subsequent inheritance automatically apply abroad?

No. For assets in EU states, the EuErbVO determines the applicable law; for third countries and real property, the state where the property is located may apply its own law. Whether the subsequent succession is recognised there must be assessed by a foreign adviser.

Can I choose German succession law if I live abroad?

As a German national, yes. Under Art. 22 EuErbVO, you can choose the law of your nationality for the entire estate. The choice should be made expressly in the disposition of property upon death.

How often is inheritance tax payable in a prior and subsequent inheritance?

Under German law, twice: for the prior heir and for the subsequent heir. The subsequent heir can apply to be taxed according to his or her relationship to the first testator. Further taxes may also be levied abroad.

Can the prior heir sell a foreign property?

That depends on the law of the state where the property is located. Under German law, dispositions of real property by a prior heir who has not been exempted become ineffective when the subsequent succession occurs, insofar as they impair the subsequent heir’s rights (Section 2113 BGB); abroad, this may be different.

What proof does a subsequent heir need?

After the subsequent succession has occurred, his or her own certificate of inheritance or, within the EU, a European Certificate of Succession, whose certified copies are valid for six months.

What applies to persons entitled to a compulsory portion?

They cannot be made to wait for their compulsory portion until the subsequent succession. An heir who is restricted by the appointment of a subsequent heir may disclaim the inheritance and claim the compulsory portion (Section 2306 BGB).

Attorney Dr. Johannes Fiala has published extensively on succession and tax law in cross-border cases and advises you on drafting dispositions of property upon death involving foreign assets, on coordination with foreign advisers and on the inheritance tax consequences. Please get in touch with the firm without obligation to discuss your specific case in an initial consultation.