It is now common for families to have international connections, with relatives spread around the world who, due to life circumstances, take up residence and acquire assets in different States.
It increasingly happens that a person, at the time of their death, is resident in a country of which they are not a national, holding assets there and, not infrequently, leaving heirs there who may or may not have assets in the country of which the deceased is a national.
In these situations, the question arises as to which country should conduct the succession proceedings.
Let us imagine the situation of a Portuguese citizen who dies having his or her last habitual residence in Spain, leaving most of the heirs there and owning assets in Portugal. In this situation, do the Portuguese courts have jurisdiction to conduct the succession proceedings? Or should it be the Spanish courts, as it is the country where death occurred and where the heirs reside?
International jurisdiction corresponds to the judicial power conferred on Portuguese courts, in relation to foreign courts, to hear cases that present connecting factors with more than one legal system, and it allows the Portuguese court to hear and decide the merits of the case.
In a situation such as the one described above, in which the habitual residence of the deceased – and of most of the heirs – is in Spain, the assets are located in Portugal and the deceased was Portuguese, we are faced with a multi-localised conflict which requires the determination of the court having international jurisdiction.
Turning to the Code of Civil Procedure, Article 59 provides that: “Without prejudice to what may be laid down in European regulations and in other international instruments, the Portuguese courts shall have international jurisdiction where any of the connecting factors referred to in Articles 62 and 63 is present, or where the parties have conferred jurisdiction on them under Article 94.”
It is therefore first necessary to determine whether there are any treaties, conventions, EU regulations or special laws, ratified or approved, which are internationally binding on the Portuguese courts, since, in that case, they will prevail over domestic law.
Given that our example concerns the determination of international jurisdiction in succession proceedings, it is necessary to refer to Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012, on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, which applies to the succession of persons who die on or after 17 August 2015.
The general rule laid down in the Regulation for determining the international jurisdiction of the courts, set out in Article 4, is the habitual residence of the deceased at the time of death, which, in the example used in this text, means that international jurisdiction lies with the Spanish courts and that the Portuguese courts lack jurisdiction to hear and decide the succession proceedings.
There are some exceptions in the Regulation to the criterion of habitual residence, such as where the deceased has chosen the law of his or her nationality to govern his or her entire succession, by a declaration in the form of a disposition of property upon death or arising from the terms of such a disposition (Article 22 of the Regulation).
However, the truth is that the exceptions to the rule of habitual residence are limited and narrowly framed and, therefore, in the absence of a choice of applicable law, the rule will be that international jurisdiction to hear and decide the succession of a person will lie with the courts of the State of the deceased’s habitual residence, even if the assets are located in another State and even if the deceased has a different nationality.
Accordingly, it is important to be aware of the existence of this Regulation and of the consequences of its application in situations in which there is no choice of law, so as to be conscious that, when changing one’s habitual residence to a country of which one is not a national, one is implicitly accepting that the personal status in succession matters will follow the rules of the country of residence.
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