Cross-border · Brussels IV · Information, not legal advice — as at 19 June 2026
Which country’s law decides who inherits — and can I choose my own?
By default, the law of the country where you were habitually resident when you die decides who inherits your estate — but you can usually override that, in your will, by choosing the law of your nationality instead.
This is the effect of the EU Succession Regulation, often called “Brussels IV” (Regulation 650/2012), which applies across Portugal, Spain, Italy, France and most of the EU. For an international family it is the single most useful planning tool — and also the one most often misunderstood.
The default: where you habitually live
Under the Regulation (Article 21), if you make no choice, your whole succession is governed by the law of the country of your habitual residence at death. So a British couple who have genuinely made their life in Portugal will, by default, have Portuguese succession law applied to their worldwide estate — including its forced-heirship rules that reserve shares for children. For many people that is not what they expected or wanted.
“Habitual residence” is judged on the whole picture of your life — where your home, family and centre of interests really are — not simply where you are registered or how many days you spend somewhere (Recital 23). It can be genuinely uncertain in a mobile life, which is one reason a clear choice in your will matters.
The choice: your national law
The Regulation (Article 22) lets you elect, in your will, the law of a country of your nationality to govern your succession instead. For a British national, electing English law (for most British clients, the law of England and Wales — the part of the UK they are most connected with) — which has no forced heirship — restores the freedom to leave your estate as you choose. The election:
- must be made expressly in a will (or be clearly demonstrated by its terms);
- applies to your whole estate (you cannot pick one law for the house and another for the bank account);
- can be the law of any country you are a national of — and, crucially, that chosen law applies even if it is the law of a country outside the EU. This is because the Regulation has “universal application” (Article 20): it tells an EU authority to apply whatever law the rules point to, EU or not. So a British national resident in Portugal can elect English law; a US national can elect the law of the US state they are most closely connected with; and a Chinese national resident in Portugal could elect Chinese law — in each case the Portuguese authorities apply that chosen foreign law to decide who inherits. You are not limited to EU laws;
- is the standard tool we use to make a cross-border estate behave the way an international family expects.
What Brussels IV does not do — three honest caveats
- It does not govern tax. The Regulation decides who inherits, not who taxes the estate. Each country applies its own inheritance/succession tax under its own rules, regardless of which law governs the succession. (The succession tax in our four countries is part of our work; the tax at home is not — we say early where an adviser there is needed.)
- It does not move the administration to your home country. This is the distinction people most often miss: which law applies and who administers the estate are two different things. Choosing English law does not mean the estate is wound up in England. If you were habitually resident in Portugal, the Portuguese authorities administer your Portuguese assets through the Portuguese process (the habilitação de herdeiros and the transfer at the notary or registry) — they simply apply the English law you chose to decide who inherits, with your English will proved to them by a certificate of English law. They do not send you off to obtain an English grant of probate for the Portuguese house — a Portuguese property cannot move on an English grant. (Any assets you hold in England remain a separate English administration in the ordinary way.) In short: the forum stays where the asset is; only the inheritance rules change to the law you elected.
- France can claw back. France has a claw-back rule (Code civil art. 913, added in 2021): where the person who died, or at least one child, was an EU national or lived in the EU, a child can recover from the French assets the reserved share French law would have given, if the chosen law gives children no protected share. This applies even where another country’s law was elected. In October 2025 France committed to the European Commission that, where English law governs, the claw-back should not apply, because English family-provision rules already protect children; on 1 June 2026 the Commission sent a pre-closure letter on its complaint file. This is the government’s stated view, not yet tested in the courts, so French property still needs specific advice.
Why this matters even if you already have a will
A will written before you moved abroad, or without a choice-of-law clause, may now be read under the law of your new country of residence — with results you didn’t intend (a forced share to children, a limited share to a spouse). Reviewing your will against Brussels IV is usually quick, and is the difference between your estate passing as you wish and passing as a foreign default decides.