Choice of Law

Choice of Law

The choice of law in inheritance matters allows for the binding determination, in a will, inheritance contract, or a separate declaration, of which national inheritance law shall apply to the entire succession. This option is particularly important in international inheritance cases and is regulated in Austria by the EU Succession Regulation (EU-ErbVO).

With a choice of law, you determine which national inheritance law applies. This is a crucial step for clarity in international inheritance cases.

Eligible Legal Systems

According to Article 22 of the EU Succession Regulation, the testator may only choose the law of a state whose nationality they possess at the time of making the disposition or at the time of their death.

• In cases of multiple nationalities, they may choose one of these laws.
• For stateless persons, the choice of law is only valid if the nationality specified in the will actually exists at the time of death.
• A choice of law in favor of the law of habitual residence is not possible.

This regulation can also lead to the application of the law of a third state, for example, if the testator is a Danish or Irish citizen.

Sebastian Riedlmair
Harlander & Partner Attorneys „Gerade bei internationalem Bezug ist die Rechtswahl das wirksamste Mittel, um langwierige Streitigkeiten zwischen Erben zu verhindern“

Scope and Limitations

• The choice of law generally covers the entire succession.
• A partial choice of law for individual assets is inadmissible.
• A choice of law is also permissible with regard to the validity of dispositions mortis causa or the binding effect of inheritance contracts

Exceptions to the Choice of Law

Overriding Mandatory Provisions

Mandatory provisions of a state that protect particularly important public interests apply even if you have chosen a different inheritance law. Examples include specific agricultural succession rules or escheat rights.

Public Policy Reservation

A state may refuse to apply the chosen inheritance law if it contradicts its fundamental values. This applies in particular if the choice of law is deliberately used to circumvent the forced heirship rights of relatives.

Formal Requirements

• The choice of law must be declared in a formally valid testamentary disposition or an inheritance contract.
• For formal validity, either the provisions of the chosen law or those of the place of execution apply.
• Amendments or revocations must comply with the formal requirements for amendments or revocations of testamentary dispositions.
• A separate choice of law declaration for intestate succession must also fulfill the form of a will.

Choice of Law before August 17, 2015

The EU Succession Regulation has been in force since August 17, 2015. However, many wills, inheritance contracts, or waivers were drawn up before that date. To prevent these older documents from automatically becoming invalid, there is a transitional rule in Article 83 of the EU Succession Regulation.

A choice of law made before this date remains valid if

• it would already be permissible under today’s rules of the EU Succession Regulation or
• it was valid at that time according to the applicable international rules of the country in which the testator either had their habitual residence or was a citizen.

This protective rule applies not only to wills but also to inheritance contracts as well as waivers of inheritance and forced heirship rights. This means that even older documents can remain effective, but it depends on whether they meet the legal requirements under one of the two variants.

In practice, it is advisable to have such older provisions reviewed by a lawyer. This ensures that no doubts about their validity arise in the event of succession.

Examples of Wording

• “At the time of drawing up this will, I am an Austrian citizen and choose Austrian law.”
• “For intestate succession, I choose the law of the state of which I am a national at the time of my death.”

Practical Significance

A choice of law is particularly advisable if

• the testator lives abroad or plans to move,
• they possess multiple nationalities,
• significant assets are located in the home country, or
• international asset structures exist.

Inheritance contracts, as well as waivers of inheritance and forced heirship rights, should also include a choice of law when there is an international connection, to avoid later validity issues.

Sebastian Riedlmair
Harlander & Partner Attorneys „Wer mehrere Staatsangehörigkeiten hat oder Vermögen im Ausland, sollte die Rechtswahl frühzeitig und rechtssicher treffen, da spätere Korrekturen oft schwierig sind.“

Practical Alternative

Regardless of a choice of law, the testator can relocate their habitual residence to another country. This automatically makes the inheritance law of that state applicable – without the restriction of nationality. This option is more flexible but requires an actual and permanent change of residence.

Your Benefits with Legal Assistance

The choice of law is a powerful instrument, but it requires precise legal review. Errors in form, wording, or the choice of applicable law can have serious consequences. We ensure that your choice of law is legally sound and remains effective in all affected countries.

Frequently Asked Questions – FAQ