EU and non-EU succession: rules, applicable law, ECS, reserved share, case law, and practical advice for heirs and testators.
When someone dies leaving assets, property, or bank accounts in multiple countries, an international succession is triggered.
This may occur, for example, if the deceased:
- was resident abroad;
- owned assets in different countries;
- held a different citizenship from the country of residence.
To avoid conflicts between legal systems (e.g., Italy vs. the USA), the European Union has introduced common rules for member states (excluding Denmark, Ireland, and the United Kingdom), but it is also essential to understand the implications beyond the EU.
The european rules: Regulation (EU) no 650/2012
Since 17 August 2015, all cross-border successions within the European Union (except those involving Denmark, Ireland, and the United Kingdom) have been governed by Regulation (EU) No 650/2012.
This Regulation allows individuals to:
- determine a single applicable law, typically that of the country where the deceased had their habitual residence;
- choose the law of their nationality;
- obtain a European Certificate of Succession (ECS), recognised by all EU Member States.
How the applicable law is determined
By default, the law of the country where the deceased had their habitual residence applies.
However, the deceased may choose for their succession to be governed by the law of their nationality, which will then apply to all their assets.
The European Certificate of Succession (ECS)
The European Certificate of Succession (ECS) is a single document that certifies:
- who the heirs are;
- who the executor is.
It is automatically recognised throughout the EU and avoids the need to initiate multiple procedures in different countries.
The reserved share under italian law
Under Italian inheritance law, the reserved share (quota legittima) refers to the portion of the estate that the law guarantees to close relatives (spouse, children, and, in their absence, parents), regardless of the will.
These relatives are called "forced heirs" (legittimari) and are entitled to a minimum portion of the deceased's estate, whether the succession is intestate (without a will) or testate (with a will).
The portion exceeding the reserved share is known as the "disposable portion", over which the deceased has full testamentary freedom.
The reserved share cannot be infringed by testamentary provisions or by gifts made during the lifetime of the deceased.
If it is, the forced heirs may protect their rights by challenging the will or lifetime donations through specific legal actions.
The reserved share in international succession law
In several EU countries (including Italy, France, Spain, and Germany), the law protects the closest relatives by granting them a right to a reserved share.
This limits testamentary freedom, including how one may dispose of their assets by will.
The situation is different in most common law countries (e.g., the United States, the United Kingdom, Australia), which allow complete testamentary freedom.
In international succession law, the concept of a reserved share is not uniformly protected across jurisdictions.
Regulation (EU) No 650/2012 provides that the law applicable to a succession is generally that of the deceased's habitual residence at the time of death, but the deceased may choose the law of their nationality.
Therefore, Italians wishing to avoid the constraints of the reserved share rules may relocate their residence to a country without such legal restrictions.
Although the Regulation mentions reserved shares, their protection under international law is not guaranteed and depends on the law applicable to the succession.
Succession involving non-EU Countries: key considerations
When the estate involves non-EU countries, different legal frameworks apply. For example:
- USA and UK: do not recognise reserved shares; trusts and wills may exclude natural heirs entirely.
- Switzerland, Israel, Brazil: Italy has judicial cooperation agreements and mutual recognition of judgments.
- International Conventions: certain rules derive from multilateral treaties (e.g., the Hague Convention, not ratified by all countries).
In these cases, it is important to:
- check whether a bilateral treaty exists between Italy and the country involved;
- consider international tax implications (double taxation, exemptions);
- seek advice from a lawyer experienced in comparative succession law.
What case law says about international succession
CJEU Judgment C‑21/22 (12 October 2023)
A non-EU national residing in an EU country may choose the law of their country of nationality, even if a bilateral agreement would impose a different law.
The Court clarified that Article 22 of the Regulation does not limit the choice of applicable law to EU Member States but allows the selection of any national law.
CJEU Judgment C‑57/24 (27 March 2025)
This case concerns the interpretation of Article 13 of Regulation (EU) No 650/2012 on cross-border successions.
The judgment clarifies that, in the event of a delayed renunciation of inheritance, the heir cannot apply to the court of their habitual residence to have the rejection validated.
Instead, they must turn to the competent authority in the state where the succession was opened.
Courts in the heir's country of residence are not competent to validate a late renunciation made in response to the legal consequences of not having previously declared their acceptance or refusal.
European Court of Human Rights – Jarre and Colombier Cases (February 2024)
In international succession cases, where the laws of different countries may conflict, the European Court of Human Rights must consider the rights of all parties involved.
This was the case in Jarre and Colombier.
Both were successful composers who moved to California and were living there at the time of death.
Their estates were placed into trusts governed by Californian law.
Their wives were designated as sole beneficiaries of the trusts, while their children were entirely excluded from the succession.
The children, residing in France, appealed to French courts seeking application of Article 2 of the law of 14 July 1819 on droit d'aubaine et de détraction, which allowed excluded French heirs to claim a compensatory share of assets located in France.
However, that law was repealed in 2011 by the French Constitutional Court.
When asked to rule on whether the exclusion violated international public policy, the European Court of Human Rights upheld the French court decisions, stating that "there is no general and unconditional right for children to inherit part of their parents' estate", and that the testamentary choices were lawful and did not breach international public policy.
What to do in the case of international succession
If you are dealing with an international succession—as an heir or a testator—here are key points to consider:
- Residence: determines the default applicable law.
- Choice of applicable law: should ideally be made in advance to avoid future conflicts.
- Request a European Certificate of Succession (ECS): helps avoid lengthy proceedings in other EU countries. You can apply through the competent authority (a notary or court).
- Deadlines: be aware of deadlines for accepting or renouncing inheritance, especially in light of recent rulings.
- Planning around reserved shares: when making a will, consider how international laws may impose or exclude reserved share rules.
- Pay attention to taxation: check whether taxes must be paid in multiple countries.
- Appoint a lawyer: especially advisable when assets are located in non-EU countries or spread across jurisdictions.
Once the succession is opened, heirs must either accept or renounce the inheritance.
In international succession cases, an heir habitually resident in a different Member State from where the succession is handled may submit their declaration of acceptance or renunciation before a court in the Member State where they reside.
The EU succession system takes into account the deceased's situation and intentions, but in recent years, case law and legal planning have become crucial to avoid unpleasant surprises, especially where non-EU testators and cross-border estates are involved.
FAQ – European and international succession
Can I choose the law of my nationality even if I am a non-EU citizen?
Yes: Judgment C‑21/22 (October 2023) confirms this.
What is the ECS?
The European Certificate of Succession is a document recognised throughout the EU that enables heirs to assert their rights in another Member State.
Do I need an ECS if I only have assets in Italy?
No, the ECS is only necessary if assets are located in other EU countries.
Who is competent if I wish to renounce the inheritance?
Only the authority of the state where the heir resides may receive the declaration. More complex cases fall under the jurisdiction of the deceased's state.
Does Italian law on reserved shares apply to foreign-held assets?
Not necessarily. If the applicable law is from a country that allows testamentary freedom, the reserved share may not apply.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
