Two legal families, two opposite logics
| Forced heirship | A share of the estate is reserved for the children — sometimes the spouse — and the deceased cannot dispose of it otherwise. This is the civil-law model: France, Belgium, Switzerland, Germany, Austria, Italy, and most of francophone Africa. |
|---|---|
| Testamentary freedom | You leave your property to whoever you choose. This is the common-law model: England and Wales, Ireland in part, the United States, Australia, New Zealand, South Africa. The corrective is not a reserved share but a claim: a dependant left with nothing can ask the court for reasonable provision. |
The difference is substantial. Under the first model disinheriting a child is impossible; under the second it is possible but open to challenge. A binational couple needs to know which will apply, because the outcomes are not remotely the same.
Even where testamentary freedom is the starting point, it is qualified in practice — by family provision claims, by fixed shares over part of the estate, or by an elective share protecting a surviving spouse. Which qualification applies determines whether a will can be challenged, and by whom.
The statutory order, where there is no will
- Descendants first: children, then grandchildren by representation where a child has died first. Children born outside marriage and fully adopted children have the same rights as others — which was not true in every country fifty years ago.
- The surviving spouse, whose share varies enormously: from a life interest in part of the estate to the whole of it absolutely, depending on whether there are children and on the matrimonial property regime.
- Ascendants and collaterals next: parents, siblings, then uncles, aunts and cousins, in an order and up to a degree fixed by law.
- The state as a last resort, where no heir can be found.
An unmarried partner inherits almost nowhere
This is the most expensive and most common mistake. Cohabitants, de facto partners, sometimes even registered partners: in the great majority of countries they are not heirs on intestacy. Without a will — and, depending on the country, without further planning — the survivor can be obliged to leave the shared home in favour of the deceased's family.
The surviving spouse: the great variable
Intestacy rules rarely match what people assume, and the recurring surprise is the same almost everywhere: where there are children, a surviving spouse does not automatically inherit everything. A statutory sum plus a share of the remainder is the common pattern, with the balance going to the children; a life interest in the home, or a right to stay in it, protects the survivor in most systems. Which of these applies, and whether the matrimonial property regime adds to it, changes the outcome considerably.
Wills
- Holograph: written, dated and signed entirely in the testator's own hand. Free, revocable at any time, and the leading source of litigation because it is badly drafted or never found.
- Attested or notarial: made before a solicitor, notary or witnesses. Costs a few hundred, is practically unchallengeable on form, and is registered, so it can be found.
- International form, useful in cross-border situations.
A will can dispose only of the free portion in forced-heirship countries. Almost everywhere, however, it can appoint an executor, deal with specific items, appoint guardians for minor children and express funeral wishes.
Two traps recur from one country to the next: a holograph will typed on a computer is void wherever the law requires handwriting; and in several systems marriage revokes an existing will unless it says otherwise — hence the rule of re-reading yours after any marriage, divorce or birth.
Lifetime gifts
Giving during your lifetime is the main planning tool and the least well understood. Two rules recur: a gift to an heir is in principle brought into account when the estate is divided, and an excessive gift can be cut down where it eats into a reserved share. Look-back periods for tax — the time during which an earlier gift is pulled back into the calculation — range from a few years to a lifetime.
What passes outside the estate
This is the point most often overlooked. In many countries whole blocks of wealth pass outside the will, by simple nomination of a beneficiary: pensions, life insurance, retirement savings, sometimes joint accounts. A forgotten nomination in favour of a former partner produces exactly the effect it states, whatever the will written afterwards says. Check the nominations at the same time as the will — and add a lasting power of attorney, which works during your lifetime and is often more useful than the will itself.
Tax, in outline
Transfers between spouses and registered partners are generally exempt or heavily relieved. Beyond that the approaches diverge sharply: some countries levy an inheritance or estate tax with allowances that depend on the relationship, others levy none but tax the deemed disposal of assets at death or a later capital gain. Cohabiting partners are treated far less favourably almost everywhere. The figures are on the country pages.
Cross-border estates
As soon as there is property abroad, a different nationality or residence in another country, the question becomes: which law applies? Three answers coexist — the law of habitual residence, the law of nationality, and a split system under which land is governed by the law of its location and the rest by another law. The last produces the hardest cases, because one estate is then settled under two laws.
The page on the European Union sets out the mechanism that unified this question within the Union, and the possibility of choosing your national law.
Property in more than one country
Two precautions hold everywhere: list your assets country by country, and check that a will made abroad does not unintentionally revoke the others through a general clause such as “I revoke all previous dispositions”. Where land is involved, advice from a notary or lawyer in both countries is almost always worth it.
What to do in practice
- Make a will as soon as there is an unmarried partner, a blended family, a disabled child, property abroad or a business.
- Register it where a register exists: a will nobody can find is worthless.
- Check the beneficiary designations on life policies and pensions: they often fall outside the estate and override the will.
- Look at the matrimonial property regime before the succession rules: half the questions put to a solicitor are in fact settled by winding up the regime.
- Talk about it while you are alive. Almost all inheritance disputes start with a surprise, not an injustice.
Two countries, two laws
A marriage celebrated abroad or with a foreigner, the law that governs the couple's property, children of two nationalities, an estate spread over two countries: the page on international couples gathers the common rules and explains the Hague Conventions.
The law country by country
The legal framework, the procedure, the time limits and the costs differ from one country to another. Each country below has a detailed page: governing texts, key facts, the actual procedure, costs, where to go and the traps to avoid.
Select a country to open its detailed page.