German Law/legacy split
QUESTION: Our son, a US citizen, living in germany for 25 years. He passed away in Jan. of this year, having been married in Montenegro,to a russian lady for 10 months not living in germany at the time of death. There are no children & no will. We are the parents of the deceased. The wife is claiming a 75% share of the estate under German Family Law. WE think that German Inheritance Law applies (50/50 split). They never lived together in Germany, she only visited on Shengen visa. There is considerable monies & property involved. How should legacy be split?
I tried to make a little more clear.
I also improved my answer linguistically.
I just corrected some typos.
The application of German inheritance law and family law follows different rules. According to German international law German inheritance law is applied if the deceased had his last residence in Germany or in regard to property that is located here. Thus, German inheritance law is applicable on the grounds of the legal assessment on the residence according to US international inheritance law (your son was an US citizen) which is called a renvoi.
Under German law the spouse would receive one half. Provided that the laws of Montenegro apply because your son had moved there prior to his death the share would also be one half according to the laws of Montenegro. However, in the latter case parents in need are entitled a higher quota upon a respective application at the court.
Please note that the applicable law and the competent court are two different issues. German courts which might be competent because assets are located here have no problem in applying foreign inheritance law. However, I cannot guarantee how the courts of Montenegro or other "judicially underdeveloped" countries deal with the problem of applying foreign law.
Upon death of a spouse the dissolution of the matrimonial regime has to be settled, too. Although this questions concerns family law German legal inheritance law entitles the surviving spouse a further quota of one quarter in the inheritance in order to ease the settlement of the matrimonial claim. This is why the spouse adds up her share to 75 % in total.
However, this would require that the marriage is subject to German law at all. According to Art. 14, 15 of the German Introductory Code to the Civil Code the applicable law is determined as follows:
1. the laws of the jurisdiction of which both of the spouses were citizens at the time of their marriage, alternatively
2. the laws of the jurisdiction in which both spouses had their habitual residence at the time of their marriage, alternatively
3. the laws of the jurisdiction to which the spouses were otherwise jointly closest connected at the time of their marriage.
In the event that in accordance with the aforementioned rules the family laws of Montenegro should apply the governing matrimonial regime would be the community of property in regard to property acquired during the marriage. In contrast, German family law stipulates the community of accrued gains as statutory matrimonial regime. Thus, German law would grant the spouse a money compensation only at the end of the marriage. Compared with this, the community of property grants the spouse an ownership title in a specific asset at the moment when it is acquired. Under the laws of Montenegro, the wife would have already obtained legal ownership which in my opinion would not leave room for the entitlement of an additional quarter of the estate.
Having said that, I would like to raise the question whether you are sure that your son was validly married? As Montenegro is a former communist state I would not think that a church wedding alone has any legal effect. To my knowledge the civil marriage at the registrar is statutory there. If you have doubts in this regard you might have this checked.