introduction
In the series of articles “Heirs and Inheritance in Florida” we introduce the topic, point out risks and present solutions. The series consists of the following contributions:
- Which inheritance law is to be applied when referring to Florida?
- Testament to references to Florida
- Compulsory portion for references to Florida
- Inheritance tax and U.S. estate tax on Florida purchases
- Settlement in Florida
In this first part of the series we explain questions around the topic of applicable law in the Florida succession.
How is the applicable inheritance law determined when referring to Florida?
Which inheritance law is applicable is determined by the private international law of Florida or Germany. Since each state has its own international private law and there are no international treaties on this, Florida courts apply different rules than German courts.
Which inheritance law do German courts apply to a Florida inheritance case?
For inheritance cases from August 17, 2015, German courts apply the rules of the European Inheritance Law Ordinance (EuErbVO) to determine the applicable inheritance law. According to the EuErbVO, the right of the last habitual residence is in principle decisive. However, there may also be a reference back to German law (e.g. for real estate in Germany).
Can I choose the applicable inheritance law?
According to Art. 22 EuErbVO, the right of nationality can be chosen by testament concerning “entire legal succession due to death”. An American from Florida can therefore choose Florida’s inheritance law.
Does a choice of law under the European Succession Regulation have to be explicitly stated?
A choice of law according to Art. 22 EuErbVO does not necessarily have to be explicitly declared either. B. can also be seen in the fact that the testator refers in the will to specific instruments of US law or Florida law. In a will that was created before August 17, 2015, even a choice of law can be “faked”.
What inheritance law do Florida courts apply to an inheritance related to Germany?
Basically, Florida courts turn
- the right of inheritance of the last domicile with regard to movable property (domicile) of the testator and
- with regard to immovable property, the right of inheritance of the place where the immovable property is located (the site) an.
Are there any exceptions to this?
There are numerous exceptions to the principle. There are different rules for the administration (Estate administration), trusts and the joint tenancy. Completely different rules also apply to death taxes, especially the German inheritance tax and the US estate tax (US federal andstate tax).
What is the domicile?
The domicile denotes the affiliation of a person to a legal area. Each person can therefore only have one domicile. It is fundamental between the home domicile (Domicil of Origin) and the domicile (Domicil of Choice) to distinguish. The original domicile is the domicile of the parents. An election domicile is justified by the fact that a personresidence) in a certain area of law with the will to remain there permanently.
Is Florida law permitting a choice of inheritance law?
From the perspective of Florida, a choice of law according to Art. 22 EuErbVO should be recognized if or insofar as Florida law refers to German law, e.g. B. because there is real estate or the testator’s domicile (domicile; in Florida too residence) would have. Under Florida law, a person who is not domiciled in Florida may also choose Florida law as regards Florida movable property.
Can it be that Florida courts and German courts apply different inheritance law in a succession?
It is entirely possible that Florida and German courts may apply different laws to the same succession and may even result in a different outcome.
The heirs or those entitled to the compulsory portion can consciously take advantage of this situation by complaining in the court that is most favorable to them. This is called “Forum Shopping” (forum = dish). See the article Choosing the cheapest place of jurisdiction for international succession matters (Forum Shopping).
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