The Interplay between Family Law, Succession Law and Private International Law

There cannot be any question that there is an interplay between the  family law, succession law and private international law and that they significantly influence each other. Hence, from the point of view of family law, the statutory matrimonial property regime is the community of property regime (premarital assets, inherited and gifted assets are excluded – art. 36 of the Russian Family Code).  It is only since 1996, when the  new Family Code was adopted,  that  spouses  may  make specific provisions in respect of all the property or  parts thereof during  marriage and in case of its dissolution. They cannot,however, restrict legal capacity of spouses; personal relations between spouses and between parents and children are excluded (art. 40, 42 of the Family Code).

An agreement is to be validated by a notary. According the the Federal Chamber of notaries, about 100.000 matrimonial property agreements  were concluded in 2018.

The Succession  Law is contained  in Book V (chapters 61-65) of the Russian Civil Code. Where a spouse dies intestate the acquisition of property is to be  done according to the degree of  relationship to a deceased person.  There are 8 degrees, the first degree is a surviving spouse, the second – seventh  degrees are relatives of the deceased person, the 8th degree is his/her dependant persons.

The principle of freedom of testamentary disposition is laid down in art. 1118 of the Russian Civil Code: a person is free to dispose of his/her property according to his/her choice.  But the freedom of testamentary disposition is not complete, as there is a circle of persons (compulsory heirs), entitled to a  reserved portion ((legitieme portie, Pflichtteil,voorbehouden deel, réserve, legitima), namely   minor children, a spouse, parents and dependent persons (art. 1149 of the Russian Civil Code).

It is to be noted that the ways of disposing of property mortis causa have been enhanced from the 1st of June 2019. The new mechanisms such as a testamentary contract and joint will of spouses, existing in German law,  were introduced in  Russian law (art. 1140 prim and para 4 of the art. 1118 of the Russian Civil Code).  Reserved portion is  to be designated  in any case – whether the devolution of property takes place intestate,through a testamentary contract or through a joint will of spouses.

On the level of  private international law,  Russia is  a party neither  to the Hague Convention  on the Law Applicable to Matrimonial Property Regimes 1978, nor the Form of Wills Convention 1961. Following the party autonomy principle,  spouses may designate an applicable law governing their marital property agreement and/or  financial contribution to each other (art. 161 of the Family Code). By contrast, there is no party autonomy in case of succession, the conflict of law rules being laid down  in art. 1224 of the RussianCivil Code. While the applicable law in general  is the law of the country of  last habitual residence of the deceased person, devolution of immovable property is governed by lex rei sitae rule.

Finally, from the point of view of European private international law, the Council Regulation 2016/1103 on Matrimonial Property Regimes Having Cross-Border Implications states that the law designated as applicable by this Regulation shall be applied whether or not it is the law of a Member State (art. 20).  In a similar vein, EU Regulation 650/2012 on International Successions  provides in its art. 20 for the  application of the law of the State in which the deceased  has  his/her habitual residence at the time of death, even if this is the law of a State that is not a member of the European Union. A single law will govern the whole succession  as  the unity model was chosen  by the Regulation’s drafters in art. 21.

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