A Guide for Families to the choice of succession law: what governs without a choice; what Article 22 of the European Succession Regulation permits; why an American will is not an implied choice; the compulsory shares the choice is usually made to avoid; and the limit German courts have placed on it.
Habitual residence, not nationality and not the location of the assets, decides which law governs a succession for a person living in Germany. Under the European Succession Regulation that law governs the whole estate, wherever it lies, including the house in California and the brokerage account in New York.
The Regulation allows that default to be displaced, but only by an express choice, and only in favour of the law of a country of which the person is a national.
The mistake this page exists to prevent is the belief that making an American will, in English, on an American form, is itself a choice of American law. It is not, and German courts have said so. Without an express clause, German succession law applies to the worldwide estate of an American habitually resident in Germany, and brings with it a compulsory share that no American will can defeat.
This is the single most consequential clause available to an American living in Germany, and it costs nothing to include while the testator is alive and competent.
(1) Article 21 of the European Succession Regulation applies the law of the deceased’s habitual residence to the whole succession, wherever the assets are.
(2) Article 22 allows a person to choose the law of a state of nationality instead, made expressly in a disposition on death.
(3) An American will drafted on an American form is not an implied choice, and German courts have held so.
(4) Where the person holds both American and German nationality, either may be chosen; where American law is chosen, Article 36 decides which state’s law applies.
(5) The usual reason for the choice is the German compulsory share, a claim of children and spouse that cannot be disinherited away under German law.
(6) The choice has a limit: the Bundesgerichtshof held on 29 June 2022 that a chosen law with no need-independent compulsory share may offend German public policy where the child and the estate are both in Germany.
Part I. What governs without a choice
Article 21 of the Regulation refers the succession to the law of the state in which the deceased was habitually resident at death, and that law governs the whole of it. For an American who has moved to Germany and established a home there, German succession law therefore governs the American assets as well as the German ones.
German succession law differs from American law in ways that matter more than the choice of forum. Heirs take the estate directly and jointly at death; there is no personal representative unless the will appoints one; and children and the surviving spouse have a compulsory share of the estate’s value that a will cannot remove.
Part II. Making the choice, and making it properly
Article 22 permits a choice of the law of a state of nationality, held either when the choice is made or at death. The choice must be express, in a disposition on death. Drafting in English, naming an executor, or reciting an American domicile does not amount to one.
For a dual national either nationality may be chosen. Where American law is chosen, Article 36 resolves which state’s law applies within a federal system, which is a question worth settling in the clause itself rather than leaving to later argument.
Part III. What the choice does not achieve
The choice governs succession. It does not govern tax: German inheritance tax follows residence and situs under its own statute, and no choice of law affects it. It does not move German land out of the German registration and notarial system. And it does not reach matrimonial property, which is referred by separate rules.
There is also a public policy limit. On 29 June 2022 the Bundesgerichtshof held that a chosen law providing no need-independent compulsory share can offend German public policy where the child and the estate are both in Germany. The choice is therefore strong but not absolute, and a plan that depends entirely on defeating a compulsory share for a child living in Germany should be built with that in mind.
| Question | Decided by |
|---|---|
| Who inherits, and in what shares | The succession law, chosen or default |
| Whether a compulsory share exists | The succession law, subject to German public policy |
| Whether German inheritance tax applies | German tax law: residence and situs, not the chosen law |
| How German land is transferred | German land register and notarial rules, in all cases |
| Matrimonial property on death | Separate conflict rules, not Article 22 |
Part IV. Practical steps
- Put the choice in express words. Name the chosen national law in the will itself. Nothing about the form, the language or the drafter supplies it by implication.
- Name the state as well as the country. Where American law is chosen, say which state’s law governs, so Article 36 does not have to be argued after the death.
- Review the choice after any change of nationality. The choice is confined to a nationality held when it is made or at death, so naturalisation and renunciation both bear on it.
- Model the compulsory share rather than assuming it is gone. Where a child lives in Germany, the public policy limit identified in 2022 may qualify what the chosen law achieves.
- Keep a German will for German land and accounts. The choice of law does not change what a German notary and the land register require.
Conclusion
Succession follows habitual residence unless the testator says otherwise, expressly and in the will. For an American living in Germany the clause is the difference between an estate governed by the plan and an estate governed by German compulsory shares, and it is available only while the testator is alive to make it.
Articles 21, 22 and 36 of Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement in matters of succession; sections 2303 and following of the German Civil Code (compulsory share); Bundesgerichtshof, judgment of 29 June 2022, IV ZR 110/21. Statuses are stated as of September 2026.
- 13 October 2026: page created.
- Rechtswahl, the choice of law
- Succession law, choice of
- The European Succession Regulation
- Pflichtteil, the compulsory share
- Habitual abode
- Nachlassspaltung, the split estate
- Gesetzliche Erbfolge, intestate succession
- Marital property regimes
- The German will alongside the American estate plan
- The German certificate of inheritance for heirs living in the United States
- American trusts confronted with German law
Contact
An American living in Germany usually has one clause standing between the plan and German succession law. Ashford International Law PC advises families and their advisers on drafting the express choice of law and the state-level designation; reviewing an existing American will against the Regulation; modelling the compulsory share exposure of each child and the spouse; preparing the German will that sits alongside the American plan; coordinating succession, matrimonial property and the German tax position, alongside the family’s existing advisers or leading the United States side end to end.
The firm is led by attorney Caroline Esche Ashford, PhD, JD. A graduate of Columbia University Law School, her practice focuses on international estate planning and the cross-border taxation and administration of estates and trusts, including the choice of succession law for Americans resident in Germany. Dr. Ashford is also licensed to practice law in Germany. She advises in French and German as well as English.
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This guide is intended for general educational purposes and does not constitute legal or tax advice, nor does it create an attorney-client relationship. The matters described, Articles 21, 22 and 36 of the European Succession Regulation, the German compulsory share, and the public policy limit identified by the Bundesgerichtshof in 2022, depend on the specific facts, assets, countries and states concerned and on the law in effect at the relevant time, and they change. Statuses and figures are stated as of September 2026 and must be confirmed before any decision. Nothing here is advice on any particular estate or transaction. A family in this situation should obtain advice from qualified counsel in each relevant country promptly, and before the existing will is left unchanged for another year.
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