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A German Perspective on the Impact of EU Private International Law on National Succession Law

Published online by Cambridge University Press:  25 May 2021

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Summary

INTRODUCTION

On 17 August 2015, the Succession Regulation entered into force in Germany. This large and rather complex regulation was regarded as a new milestone and a landmark event in the field of conflict of laws, as well as in the field of succession law. It has led to considerable changes in both areas of law. Moreover, as recent decisions of the Court of Justice of the European Union (CJEU) have shown, the impact of the Regulation is neither restricted to questions of conflict of laws nor to the area of succession law. Some highly controversial questions and principles of German law are seen in a new light due to the Succession Regulation. This chapter does not aim to explain all potential influences the Succession Regulation might have on German law; instead, it will restrict its focus on some especially prominent and complicated questions caused by recent judgments of the CJEU. First, I want to discuss a very controversial issue in German law: the complicated interplay between the rules of succession and the matrimonial property regime (see section 2 below). Then I will turn to the influence that a recent judgment of the CJEU has had on the German rules concerning the transfer of ownership (see section 3 below). Following this, questions concerning the German and the European Certificate of Inheritance and their difficult relationship will be discussed (see section 4 below). Finally, the focus of this chapter will shiftto the overreaching application of the Succession Regulation installed by the German legislator in Article 25 of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB) (see section 5 below). I will conclude with a summary of the results.

THE INTERPLAY BETWEEN SUCCESSION AND FAMILY LAW IN GERMANY : THE CASE OF THE (IN)FAMOUS § 1371(1) BGB

German law has a complicated rule concerning the equalisation of accrued gains in the event that the (default) matrimonial property regime ends with the death of one spouse. In such a situation, the surviving spouse can choose between two different ways of claiming assets accumulated by the deceased during the marriage. One way is to compare the assets each spouse had at the beginning and at the end of the marriage.

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Publisher: Intersentia
Print publication year: 2021

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