Decision by the Higher Regional Court of Karlsruhe on Habitual Residence in International Inheritance Law – Case No.: 14 W 50/24 Wx
The habitual residence of the deceased plays a central role in international inheritance law. In cross-border inheritance cases, habitual residence is a key criterion for determining which national inheritance law applies. The Higher Regional Court of Karlsruhe clarified in its decision on July 22, 2024, that in addition to the actual residence, the deceased’s intention to remain must also be considered (Case No.: 14 W 50/24 Wx).
The number of inheritance cases with an international connection is increasing. One reason for this is that many Germans have purchased property abroad to enjoy their retirement in sunnier locations. Another, albeit unfortunate, reason is the need for a place in a care home, which may be less expensive abroad than in Germany. In both cases, it must be determined which national inheritance law applies in the event of death, as explained by MTR Legal Rechtsanwälte, a law firm that provides advice on inheritance law, among other areas.
Inheritance Law in Cross-Border Cases
The EU Inheritance Regulation governs which inheritance law applies to cross-border inheritance cases within the European Union. According to this regulation, the inheritance law of the state in which the deceased had their habitual residence applies. However, the question arises as to which criteria determine a habitual residence. There can be various motivations for staying abroad. The Higher Regional Court of Karlsruhe therefore emphasized in its decision of July 22, 2024, that in addition to the objective criterion of actual residence, the subjective intention of the deceased to remain is also crucial. In cases of care, this intention may be lacking, for example, if a person suffering from dementia is placed in a care home abroad without or against their will.
In the case under consideration, a German testator without children began to show increasing signs of dementia from May 2022, making home care increasingly difficult. As a result, the individual was initially placed in various care homes in Germany before being transferred to a care home in Poland in April 2023. He passed away a few months later. The deceased’s entire estate, consisting mainly of a business interest and a real estate share, was located in Germany. He had no family or social ties to Poland. His wife had placed him in the Polish care home for cost reasons, against his will.
Probate Court Denies Certificate of Inheritance
The wife applied for a certificate of inheritance as the sole heir in Germany. However, the District Court of Singen rejected the application, citing Article 4 of the European Inheritance Regulation (EuErbVO), as it did not have jurisdiction, arguing that the deceased had his habitual residence in Poland.
The wife contested this decision, arguing that contrary to the court’s view, her husband still had his habitual residence in Germany.
The Higher Regional Court of Karlsruhe agreed with her argument. It stated that the District Court of Singen was internationally competent to rule on the application for a certificate of inheritance under Article 4 EuErbVO. The court explained that the concept of habitual residence must be interpreted autonomously within the EU. Factors such as the duration and regularity of the stay, the circumstances and reasons for the stay, and the testator’s intention to have their habitual residence in that state must be considered. Social and family ties, the location of significant assets, or even the testator’s language skills are important criteria.
Intention to Remain Required
To determine the habitual residence of the deceased, both objective and subjective criteria are crucial. Objectively, the actual physical presence must exist, but the length of stay is not decisive, according to the Higher Regional Court. Subjectively, there must be an intention to remain, meaning the deceased must have expressed a clear intention to make the place their permanent home. This applies even in cases where the person is placed in a foreign care home, the court added. If individuals can no longer form their own will or are placed in a foreign care home against their will, the subjective intention to remain is absent.
Based on this, the deceased still had his habitual residence in Germany, according to the Higher Regional Court of Karlsruhe. His placement in a care home was due to financial reasons and not to establish a new permanent residence. Moreover, the placement was against, or at least without, the consent of the dementia-stricken deceased, the court said. Therefore, the District Court of Singen must reassess the widow’s application for a certificate of inheritance.
MTR Legal Rechtsanwälte has extensive experience in international inheritance law and also advises on all other areas of inheritance law.
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