Can Moving to Thailand Intentionally Eliminate Children's Forced Heirship Rights?

Introduction

The forced heirship (Pflichtteilsrecht) in German inheritance law ensures children a minimum share of their parents' estate, even if excluded from the will. Some individuals wonder whether relocating to a country with different inheritance laws, like Thailand, can help bypass these obligations. This article explores whether a move to Thailand can effectively eliminate forced heirship claims under German law and the conditions under which the governing law can be changed.

 
Forced Heirship in German Law

German inheritance law provides mandatory shares for close relatives such as children, spouses, and parents. This right applies regardless of the deceased’s testamentary wishes.

Under German law:

The mandatory portion is 50% of the statutory share that the heir would receive if no will were in place.
German inheritance law typically applies to all German citizens, regardless of their residence, unless legally excluded through specific provisions.
 
Thai Inheritance Law: No Forced Heirship

Unlike German law, Thai inheritance law allows individuals to freely decide how to distribute their estate. There are no mandatory shares for children or other heirs. This difference makes Thai law appealing for individuals who want full control over their inheritance planning.

 
Can a German Testator Living in Germany Choose Thai Law?

No, a German citizen who resides in Germany cannot simply choose Thai law to govern their estate. German inheritance law applies by default, as per Article 25 of the German Introductory Act to the Civil Code (EGBGB) and the EU Succession Regulation (650/2012).

However, a testator can choose the law of their habitual residence to govern their estate. For this to apply, the testator must establish habitual residence in Thailand, which involves more than a mere declaration. Habitual residence is determined by the testator’s actual life circumstances.

 
When Is Thailand Considered the Testator’s Habitual Residence?

Habitual residence refers to the place where an individual’s life is primarily centered, and it is assessed based on various factual criteria. Generally, the following conditions must be met for Thailand to be considered the habitual residence:

Duration of Stay:

A continuous stay of at least six months in Thailand is typically required. Short-term absences, such as vacations or family visits abroad, do not interrupt the establishment of habitual residence if the individual returns to Thailand as their primary home.

Integration into Local Life:

Regular participation in Thai community life, adaptation to local customs, and, where applicable, learning the language.

Maintaining social and economic ties primarily in Thailand rather than Germany.

Primary Residence:

Ownership or a long-term lease of property in Thailand, with the clear intention of making it the center of life.

Severing Ties to Germany:

A reduction or cessation of strong ties to Germany, such as selling property, ending professional obligations, or moving family members to Thailand.

It is important to note that habitual residence is assessed on a case-by-case basis, and the intent to stay permanently in Thailand must be demonstrable through actions, not just declarations.

 
Practical Limitations of Choosing Thai Law

Even if Thai law is successfully applied, challenges can arise:

Assets in Germany: German courts may still enforce forced heirship rules on assets located in Germany, especially if the heirs assert their rights.

Validity of Choice: If the move to Thailand appears motivated solely by avoiding forced heirship claims, the choice of law could be contested in German courts.

Partial Estate Conflicts: Estate assets in Thailand may follow Thai law, while those in Germany remain subject to German inheritance rules, creating a fragmented legal situation.
 
Steps for Changing the Governing Law

To ensure that Thai law applies to your estate:

Establish Habitual Residence in Thailand: This requires genuine relocation, a stay of at least six months, and integration into Thai society.

Draft a Will: Explicitly state that Thai law should govern your estate. The will must comply with both Thai formalities and the choice of law provisions under EU Succession Regulation.

Professional Advice: Engage legal experts in both Germany and Thailand to address cross-border inheritance complexities.
 
Case Study: A German Retiree in Thailand

Consider a German retiree who moves to Thailand, spends most of the year there, and declares it as their habitual residence. If they draft a will stating that Thai law governs their estate, their children may have no claim under Thai law. However, if the retiree retains significant assets in Germany, the children could assert their forced heirship rights over those assets, leading to disputes.

 
Conclusion

While relocating to Thailand can offer greater flexibility in estate planning, it does not automatically eliminate the forced heirship rights of children under German law.

Successfully applying Thai law requires genuine relocation, establishing habitual residence (generally six months or more), and carefully drafted legal documents. Additionally, assets in Germany remain subject to German law, potentially preserving forced heirship claims.

To avoid legal conflicts, individuals should consult experienced lawyers familiar with cross-border inheritance laws to ensure their estate planning goals are achieved without unintended consequences.