Interaction Between Succession and Matrimonial Property Regimes - Practical Issues
Understanding the interaction between succession and matrimonial property regimes is crucial for distributing a deceased person's estate. The Succession Regulation and the Matrimonial Property Regime Regulation both come into play in the absence of a marriage contract, determining the applicable law for inheritance. The scope of these regulations in terms of time and space, as well as their implications for countries under The Hague Convention, are essential considerations in navigating the complexities of estate distribution.
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Practical Issues: the Interaction between Succession and Matrimonial Property Regimes Fran ois TREMOSA EUROPEAN LAW INSTITUTE FAMILY AND SUCCESSION LAW SIG WEBINAR 9TH OCTOBER 2020
Introduction In order to distribute a deceased person s estate, it is necessary to know what matrimonial property regime applies In the absence of a marriage contract, the Succession Regulation and the Matrimonial Property Regime Regulation will both apply, and therefore interact in order to designate the applicable law
I Scope of the two Regulations 1 ) Scope in time : Whereas the Succession regulation came into force on August 17, 2015 the MPR regulation came into force on January 29, 2019 Aug 17, 2015 Jan 29, 2019 PIL Succession Regulation PIL for MPR Succession Regulation MPR Regulation
I Scope of the Regulations 1 ) Scope in time : - For the countries which have adopted The Hague Convention of March 14, 1978 (namely, France, Luxembourg and the Netherlands), a third period is to be included: for marriages concluded between 1st September 1992 and 28th January 2019, The Hague Convention applies Sept. 1, 1992 Aug 17, 2015 Jan 29, 2019 PIL PIL for Succession Hague Convention for MPR Succession Regulation Hague Convention for MPR Succession Regulation MPR Regulation
I Scope of the Regulations 1 ) Scope in time : That specific issue is not about to disappear as we are now dealing with the inheritance of people who, on average, got married 40 or 50 years ago : therefore, for decades to come, we will have to apply the rules pre-existing the MPR regulation whilst applying the Succession Regulation to all inheritances opened since August 17, 2015
I Scope of the Regulations 2 ) Scope in space : - Both regulations apply universally : the applicable law can therefore be the law of any country in the world. However, the Regulations apply only to countries which have adopted it Succession Regulation MPR Regulation All Member States except: Denmark Ireland UK All Member States except: Denmark Ireland UK Baltic States Hungary Poland Romania Slovakia
I Scope of the Regulations 3 ) Scope : questions linked to MPR Likewise, article 1 of the MPR Regulation excludes from its scope the Succession of a spouse Article 1 of the Succession Regulation expressely excludes from its scope all Hence the delicate question of the exact scope of each regulation : what are the conventions or the rules that fall under the scope of the Succession Regulation and the ones that fall under the scope of the MPR Regulation ?
I Scope of the Regulations 3 ) Scope : CJUE : 1st March 2018, aff. C-558/16, Doris Mahnkopf De facto, one of the first cases brought up in front of the CJUE concerns this issue : Mr Mahnkopf, a German citizen whose habitual residence was in Berlin passes away on August 29, 2015. His heirs are his wife (no marriage contract) and their son. Mrs Mahnkopf wants an ECS to be issued mentioning that she shall inherit 50% of the estate: as an heir and upon winding up the legal German matrimonial regime as stated by article 1371 BGB. The German court refuses stating the latter is a specific rule linked to the matrimonial regime that shouldn t be specified in an ECS.
I Scope ot the Regulations 3 ) Scope : CJUE : 1st March 2018, aff. C-558/16, Doris Mahnkopf The CJUE stated that the ultimate point of article 1371 BGB was to help determine the inheritance share of the surviving spouse ; that it was therefore in the scope of the Succession Regulation and it shall be mentioned in the ECS.
I Scope ot the Regulations 3 ) Scope : CJUE : 1st March 2018, aff. C-558/16, Doris Mahnkopf Would it have been the same result regarding certain provisions that might exist in certain marriage contract (for instance, clauses whereby the communaut is attributed to the surviving spouse ?) If the law that applies to both the Succession and the MPR is the law of the same country, then, probably yes, but if the law that applies to the Succession is different to the one applying to the MPR, what will the CJUE decide ?
II The circulation of the ECS According to article 68 h of the Succession Regulation, the Certificate shall contain the information concerning the matrimonial property regime. Ex : Mr and Mrs GOMEZ, a Spanish couple from Barcelona get married in Barcelona in 1195 without a marriage contract. According to Catalan law, they will be married under the regime of separation. In 2000, they move to France. In 2011, Mr GOMEZ buys, alone, a property their main residence in France and a secondary residence in Barcelona. According to which Notaire issues the ECS (a French Notaire or a Spanish Notaire), the result will not be the same : each Notaire will simply have applied its internal law. Hence the fact that the ECS will be weakened for years to come by this lack of reliability
