Choice of law in international inheritance cases – When can Danish inheritance law be applied to a foreign estate?

1. Introduction

When a Danish citizen dies abroad, the question arises as to which country's inheritance law should apply. This depends on the rules on choice of law.

Here we review the Danish and European rules, how wills affect the choice of inheritance law, and what happens with invalid choice of law.

2. What is choice of law in inheritance law?

Choice of law determines which country's inheritance rules apply – not which court handles the case.

Example: A Dane dies in Spain. If no choice of law has been made, Spanish inheritance law applies. If Danish inheritance law is chosen in a will, Danish inheritance law is used – but the case is still handled in Spain.

Danish law allows choice of Danish inheritance law if the testator was a Danish citizen at the time of death.

3. EU Inheritance Regulation and Choice of Law

As a main rule, the inheritance law of the deceased's last country of residence applies (article 21).

Exception: The testator can choose their own country's law (article 22) – e.g. Danish law for a Danish citizen.

Denmark has a legal reservation, but typically recognizes choice of law made under the regulation.

4. Can you always choose Danish inheritance law?

• The choice must appear clearly in the will
• The testator must be a Danish citizen
• The processing country must accept the EU regulation

Heirs cannot choose Danish law after death if it is not stated in a will.

5. If the deceased has chosen Danish law in a will

The inheritance is distributed according to Danish rules – but the case can still be handled abroad.

The choice of law can be overridden if:

• The will is not valid in the country of residence
• There is doubt about citizenship or intent
• The wording in the will is unclear

Example: A Dane in France chooses Danish inheritance law. France recognizes the choice, but handles the case in French probate court.

6. If no choice of law has been made

Without a will, the inheritance rules of the country of residence apply (article 21).

Danish law can only come into play if there are assets in Denmark – and only for these.

7. What if the choice of law proves invalid?

A choice of law can be invalid if:

• The testator was not a Danish citizen
• The will is invalid locally
• The choice of law is unclear or the testator was incompetent

In that case, the inheritance law of the country of residence applies, and the heirs have limited opportunity to change this.