The death of either the Japanese spouse or the foreign national spouse in an international marriage inevitably raises inheritance issues. How the inheritance is handled varies depending on which spouse dies. This article explores the inheritance issues that occur when the foreign national spouse dies.
Many foreign nationals who are married to Japanese nationals and have lived in Japan for many years seem to assume that Japanese laws will apply to their estate when they die since Japanese laws usually apply in their daily life.
However, when a foreign national spouse dies, even if he or she lives in Japan, the Japanese laws will not necessarily apply to the estate of the deceased foreign spouse.
Which country’s laws will apply?
As a general rule, the inheritance procedures in Japan are subject to the laws of the deceased person's home country. However, in accordance with the laws of the deceased person's home country, Japanese laws may apply in exceptional cases.
Since this is a bit technical and complex, it is difficult to understand.
For example, in common law countries such as the United Kingdom and the United States, the inheritance of real property will be governed by the laws of the country where the real estate is located and assets other than real property will be governed by the laws of the deceased's domicile . This means that if the deceased person is a citizen of a common law country (or territory), the inheritance of the real property located in Japan will be governed by the laws of Japan and the other assets that are not real property will be governed by the laws of the country (or territory) of the deceased’s domicile.
Further, when a person from an EU country dies, the laws of the deceased’s “habitual residence” will apply in accordance with the EU Succession Regulations . There is still the issue of determining where the deceased’s habitual residence is located. However, for a foreign national who has resided in Japan for a long time, his or her habitual residence is likely to be Japan. In other words, if a person from an EU country who has lived in Japan for a long time dies, the Japanese inheritance law will apply.
In this way, if Japanese law is to apply after checking the laws of the deceased's home country, then Japanese law will apply. In this case, it is not necessary to apply the laws of a foreign country. That being said, it is impossible to know whether Japanese law will apply without checking the inheritance laws of the deceased’s home country. In addition, if the laws of the deceased’s home country apply as a general rule, research about the inheritance laws of the deceased’s home country will be necessary. However, if the foreign spouse has lived in Japan all his or her life, having the surviving Japanese spouse and children research the laws of a foreign country could be burdensome for them.
Complicated? How to make it easier
The best way to avoid these difficult problems is for foreign nationals to leave a will. We also highly recommend that foreign nationals leave a will in order to proceed with the inheritance procedure.
Kobe Legal Partners Shihoshoshi Law Office has handled numerous inheritance cases and has provided legal consultation to many foreigners from various countries. Please do not hesitate contact Kobe Legal Partners for advice on inheritance planning and other matters.