Common Law Will Versus Civil Law Inheritance: What Executors Must Know

Two Legal Worlds, One Estate

When someone dies with assets in both the United States and France, or both the UK and Spain, the estate doesn't follow one set of rules. It follows two fundamentally different legal philosophies — and the conflict between them is where executors lose time, money, and sometimes entire inheritances.

How Common Law Handles Inheritance

Common law countries — the US, UK, Canada, Australia, New Zealand — operate on the principle of scission. This means the estate is split based on what type of asset is involved:

• Real property (land, buildings) is governed by the law of the country where the property sits. This is the lex situs rule. A vacation home in Nevada follows Nevada law, period, regardless of where the deceased lived.
• Movable property (bank accounts, investments, personal belongings) is governed by the law of the deceased's last domicile.

Common law generally gives testators broad freedom to distribute their estate, subject to local family-provision or other mandatory rules. The exact limits differ by jurisdiction.

How Civil Law Handles Inheritance

Civil law countries — France, Germany, Spain, Italy, most of Latin America and continental Europe — take the opposite approach. Under the unity of succession doctrine, one governing law applies to the entire worldwide estate, typically based on the deceased's nationality or last habitual residence.

The critical difference: civil law restricts what a testator can do with their estate. Forced heirship rules reserve a mandatory portion for close relatives, often between 50% and 75% depending on the jurisdiction and family structure. Under French law, the children's collective reserved share is 50% with one child, two-thirds with two, and three-quarters with three or more. The testator can only freely dispose of whatever remains after those reserved portions.

Where the Systems Collide

The collision happens when a common law testator dies owning property in a civil law country, or vice versa.

A retired American couple living in Spain writes a standard US will leaving everything to each other. Under US law, this may be straightforward. Spanish forced-heirship rules reserve shares for descendants, which can conflict with a will leaving everything to the surviving spouse. The will's instructions and the local law may directly contradict each other.

The German Federal Court ruled on June 29, 2022 (case IV ZR 110/21) that a British national resident in Germany could not use a nationality election to completely disinherit a child. The court held that the child's right to a compulsory share (Pflichtteil) was a matter of German public policy that overrode the choice of foreign law.

France took a similar position in 2021 by amending Civil Code Article 913. If the deceased or at least one child is a national of, or habitually resident in, an EU member state, the children can claim compensation from French-situs assets — even if the will chose the law of a country that allows full disinheritance.

The Brussels IV Escape Valve

The EU Succession Regulation (Brussels IV) was designed to simplify this mess. In participating EU member states (excluding Denmark and Ireland), it establishes a single default rule: the law of the deceased's last habitual residence governs the entire succession. But it also lets testators elect the law of their nationality instead.

This nationality election is a significant planning tool for people living in a participating EU member state. A British expat in Italy can elect English law in their will, potentially limiting the effect of local forced-heirship rules. An American in France can elect US law, subject to applicable limits.

The election must be explicit in the will — it doesn't happen automatically. And it doesn't prevent the protective overrides that France and Germany have enacted, which can still claw back reserved portions from local assets.

Practical Steps for Executors

If you're administering an estate that spans both legal systems, get clarity on three things immediately:

1. Which country's law governs which assets? Map every asset against the applicable legal system. Real property follows lex situs in common law countries; movable property follows domicile or habitual residence depending on the jurisdiction.
2. Does the will contain a nationality election? If the deceased lived in an EU country and their will elects the law of their nationality, that election controls — subject to the local overrides mentioned above.
3. Are there forced heirship claims? If any asset sits in a civil law jurisdiction, identify the reserved heirs and calculate their mandatory shares before making any distributions.

The International Estate toolkit walks through this analysis country by country, with a forced heirship exposure calculator and a conflict-of-laws decision tree for estates that straddle both systems.