EU Regulation 650/2012: the silent revolution in international succession

Entering into force on 17 August 2015, Regulation (EU) No 650/2012 on succession matters represents one of the most significant reforms to European private international law in a decade. Prior to its adoption, determining the applicable law for a succession involving several countries required navigating a labyrinth of bilateral conventions, divergent national rules and sometimes contradictory court decisions.

The general rule laid down by Article 21 of the Regulation is deceptively simple: the law applicable to the succession as a whole is the law of the State in which the deceased had his or her habitual residence at the time of death. This « unity of succession » principle puts an end to the classic distinction between movable assets (governed by the law of domicile) and immovable assets (governed by the lex situs). Henceforth, a single law governs the entire estate — both movable and immovable — regardless of the country in which each asset is located.

For clients on the French Riviera — a region with one of the highest concentrations of foreign residents in Europe — this principle carries significant practical consequences. A British national who settled in Mougins in 2018, owning an apartment in Nice and a financial portfolio in London, will have their succession governed by French law if they die in France without taking any contrary measure. This notably implies the application of the French forced heirship rules (réserve héréditaire) — the share that cannot be withheld from children — even for assets held across the Channel.

It is important to note that the United Kingdom, Denmark and Ireland opted out of the Regulation, so it does not apply in those jurisdictions. However, French courts will apply the Regulation to determine the applicable law even when the designated law is that of a non-EU state (Article 20).

The professio juris: choosing the law that governs your estate

Article 22 of the Regulation opens an option of considerable scope: any person may choose as the law to govern their succession as a whole the law of the State whose nationality they possess at the time of making the choice or at the time of death. This professio juris must be made expressly in a disposition of property upon death — most often a holograph or notarial will — or must result unequivocally from the terms of such a disposition.

The professio juris offers strategic value in two common situations on the Riviera:

1. The French national residing abroad (Switzerland, Monaco, UAE, Singapore) who wishes their children to benefit from the French forced heirship protections — absent in certain states of residence — can designate French law by professio juris.

2. The foreign national residing in France (German, Swiss, American) who wishes to be free of French forced heirship rules and enjoy greater testamentary freedom can designate the law of their nationality, provided that law does not protect their forced heirs in an equivalent manner.

Care should be taken with the public policy exception (Article 35): French courts may set aside the application of a foreign provision that is manifestly incompatible with French public policy. The Court of Cassation clarified that the forced heirship rule is not in itself a principle of French international public policy (Torres judgment, 27 September 2017), thereby providing legal certainty for choices of foreign law on this specific point.

Succession taxation: independent of the civil law chosen

A common misconception is to believe that choosing the applicable civil law for a succession automatically triggers the fiscal law of the same country. This is not the case: EU Regulation 650/2012 is explicitly excluded from its scope of application in tax matters (Article 1, paragraph 2). Succession taxation remains governed by independent national rules and, where applicable, bilateral tax treaties.

Under French tax law, French inheritance tax becomes due as soon as one of the following conditions is met (Article 750 ter of the General Tax Code):

— the deceased was domiciled in France for tax purposes at the time of death (all transmitted assets are then taxable in France, wherever located in the world);

— the transmitted assets are located in France, even if both the deceased and the heirs are domiciled abroad;

— the heir, donee or legatee is domiciled in France and has been so for at least six years in the ten years preceding the taxable event.

This third rule is particularly far-reaching for international families: an adult child living in Paris for seven years who inherits from a parent residing in Zurich will be taxed in France on all assets received, including Swiss assets, even if the succession is entirely governed by Swiss law.

France has concluded tax treaties on inheritance matters with a limited number of countries: the United States, Germany, Sweden, Switzerland, Italy, the United Kingdom, Belgium, Spain, Portugal, the Netherlands, Austria and a handful of others. These treaties prevent double taxation but do not harmonise rates or allowances.

Three typical situations on the Riviera — and how to plan ahead

Five steps to secure your international estate transmission

International estate planning is not a one-off operation but a structured process requiring periodic review. Here is the methodology we recommend to our clients.

Step 1 — Comprehensive estate mapping

Identify every asset (real estate, financial, business, intellectual property rights, life insurance policies) with its legal and fiscal location. An asset purchased through a French SCI is a French asset; a Luxembourg life insurance contract may follow different rules. The location of each asset determines which laws may potentially apply.

Step 2 — Analysis of potentially applicable laws

Identify: (i) the law of the current country of habitual residence, (ii) the law of nationality (or nationalities, in cases of dual citizenship), (iii) the lex situs for each immovable asset, (iv) relevant bilateral tax treaties. This analysis often reveals surprises — particularly for people who have recently changed their country of residence.

Step 3 — Informed choice of applicable law (professio juris)

If a choice of law is appropriate, it must be formalised in a suitable legal instrument. In France, a notarial will offers maximum legal certainty. The professio juris must be accompanied by a complete civil status declaration and proof of nationality. It can be amended or revoked in the event of a change in circumstances.

Step 4 — Coordination of legal instruments

Will(s) in each relevant country, beneficiary clauses in life insurance contracts, civil partnership agreements, SCI articles of association, matrimonial regime — all of these instruments must be mutually consistent. A will drawn up under French law may be invalid in the United Kingdom if it was not executed in accordance with English formal requirements.

Step 5 — Periodic review

A change of residence, a marriage, a birth, the acquisition of a foreign property or a legislative change (such as the Swiss 2023 reform reducing forced heirship) can undermine prior planning. We recommend a review every three to five years, or at each significant life event.