Ley aplicable a la sucesión por causa de muerte y reenvíoDos nuevas entregas del Tribunal Supremo entre el Código civil y el Reglamento 650/2012, de sucesiones

Abstract

The current paper deals with the last two judgments of the Spanish Supreme Court (Tribunal Supremo) on renvoi in Private International Law. Both judgments are sticking to the traditional legal doctrine of the Tribunal Supremo. One of them deny the renvoi from English law to the Spanish law assessing as a relevant factor the fact that the deceased person had stated that his domicile was in England. The other one expressly denies that the renvoi rule of the Spanish Civil code may be affected by the will of the deceased person, as some Spanish scholars ask for. The author analyses both judgments and pays special attention to three relevant topics. Firstly, the fact that in the former Spanish judicial practice, the special concept of the English (or sometime other common law) domicile had been disregarded. Secondly, and contrary to the decision of the Tribunal Supremo, that the flexibility of the Spanish Supreme Court doctrine on renvoi allows to take into account the will of the deceased person in order to avoid that renvoi. And, thirdly, the need for awareness of the fact that Spain is a state with more than one legal systems, so that the renvoi to the Spanish law is, actually, a renvoi to one of the Spanish laws. And this can raise new questions on the renvoi itself. Lastly, the paper analyses how these sort of problems will be managed under the application of the European Regulation 650/2012, on Successions.