Cross-border succession · Habitual residence · Information, not legal advice — as at 25 August 2026
Habitual residence: the test that decides whose law governs an estate
Habitual residence is the place where the person’s life was actually centred — assessed from all the circumstances of the years before death: how long and how regularly they were there, why, where family and social life ran, where the practical anchors of daily life sat. It is not defined by any register, visa or tax certificate, and it is not the same thing as tax residence. It sets the default law for the whole estate under Article 21 of the EU Succession Regulation — displaced only by a will’s choice of national law, or (rarely) by a manifestly closer connection to another country. For a settled retiree the answer is usually obvious; for the split-year lives — six months here, six there — it is precisely the question a written opinion settles.
Almost every question a family asks about a cross-border estate — who inherits, whether the will’s wishes hold, whether a reserved share applies — runs through one gate first: which country’s law governs the succession? And under the EU Succession Regulation (650/2012, “Brussels IV”), the default answer is set by a single test: the law of the State in which the deceased was habitually resident at the time of death governs the estate as a whole — Article 21(1). The same test also fixes which country’s authorities handle the succession (Article 4). One concept, carrying nearly all the weight.
The Regulation never defines it — deliberately
There is no definition of “habitual residence” in the Regulation’s articles. What there is, is guidance in its recitals: the authority assessing it should make an overall assessment of the circumstances of the life of the deceased during the years preceding death and at death, taking account of the duration and regularity of the presence in the State concerned and the conditions and reasons for it — looking for the place that reveals a close and stable connection (recital 23). It is a question of fact and substance, not of paperwork: no residency card, padrón entry, NIF registration or visa is conclusive, in either direction. The registers are evidence; they are not the answer.
The lives that make the test easy — and the ones that make it hard
Easy: the couple who sold up in Surrey, bought the house on the Costa del Sol, and have lived there for eight years with the doctor, the golf club and the grandchildren’s visits all running through Spain. Habitually resident in Spain — Spanish law is the default for the whole estate, reserved shares included, unless a will chose their national law.
Hard, type one — the professional posted abroad: recital 24 itself flags the person who went to another country to work, sometimes for long periods, but kept the centre of interests of their family and social life at home. Such a person can remain habitually resident in the home State despite years physically elsewhere. Duration alone does not decide it.
Hard, type two — the split-year life: the couple who genuinely live in two States — the swallows with the winter in the Algarve and the summer in Yorkshire, without a stable dominant base. Here recital 24 allows nationality and the location of the main assets to become special factors in the overall assessment. These are exactly the estates where reasonable minds differ — and where the answer moves the whole estate from one legal system to another, changing who inherits, not just how things transfer.
The escape clause — rare by design
Article 21(2) adds a safety valve: where it is clear from all the circumstances that the deceased was manifestly more closely connected with a State other than that of habitual residence, that other State’s law applies. The word doing the work is manifestly — recital 25 warns that it must not be used as a subsidiary tie-breaker whenever habitual residence is merely complex. It is for the exceptional case, classically the person who moved shortly before death with their whole life still anchored where they came from.
Tax residence is a different question — answered by different rules
The trap professionals fall into most: reading a tax-residence certificate as the answer. Tax residence and habitual residence are separate tests under separate rules — the 183-day counts, the domestic tax statutes and the treaty tie-breakers decide where income is taxed; none of them governs succession. A person can be tax-resident in one State and habitually resident in another, and the estate follows the second. (The tax consequences of a death are real, but they are a separate question with its own geography.)
Why the will still matters — whichever way residence points
Habitual residence only sets the default. A will’s express choice of the law of the person’s nationality (Article 22) displaces it entirely — which is why the choice-of-law clause is the first thing we look for in any file, and the single cheapest piece of certainty available to anyone still planning. And for the family of someone who lived in England or Ireland with a home in our countries, the analysis has one more turn — the property can come back under local rules even though the person was never resident here; the three situations, explained plainly.
Where the residence question is genuinely arguable — the split-year couple, the posted worker, the recent mover — it is not a point to guess. It is the foundation for everything that follows, and it is exactly what our written Inheritance Entitlement opinion establishes first: the facts gathered, the test applied, the conclusion stated in plain terms — signed by a lawyer registered in the country concerned (and in the other three), for a fixed fee. If the answer is that another country’s law governs, what that law gives is a separate certificate of foreign law — included when we handle the estate (Succession Administration); otherwise a separate fixed fee, quoted before we start.