Since the early nineteenth century, the nexus of private property and the family has been a key feature of societies on both sides of the Atlantic. The American and French Revolutions spurred transformations in property relations that replaced traditional forms of common ownership with private ownership. In parallel, the early modern household evolved into the (nuclear) family as the fundamental social unit. These significant societal shifts were accompanied by legal and administrative reforms, along with established kinship practices, all designed to consolidate the family and ensure the smooth transfer of private wealth within it. The inheritance of estates thus became not only a deeply ingrained legal and social norm but also a prevalent practice across transatlantic societies.Footnote 1
Two opposing but equally significant processes have shaped the intergenerational transfer of wealth since 1800: the spread of the modern nation-state model and a rising wave of global migration. On the one hand, the modern nation-state became established as a political entity that claimed exclusive sovereignty over a specific territory and its population. Governments initiated legal reforms and expanded state administrations for transferring estates within their respective states.Footnote 2
On the other hand, global migration surged in the 19th century, with the United States emerging as a primary destination.Footnote 3 Over the course of the 19th century, roughly 32 million people from Europe arrived in the United States.Footnote 4 Although some migrants brought their entire families with them, most left family members behind.Footnote 5 Men often initially migrated without their family and planned to have family members join them once they had settled in. The latter part of the plan sometimes failed, owing to personal circumstances, economic crises, and wars, so that not all immigrants were able to realize their plans for having their family members join them. Thus, at the time of a man’s death, his wife and children might still live in his home country.Footnote 6 Some immigrants also died unmarried or with a predeceased spouse and no children. In these cases, the estates were usually distributed among the deceased person’s siblings as well as nieces and nephews in his country of origin. As a result of these migration and inheritance patterns, long-absent relatives who died overseas were a common phenomenon in 19th- and 20th-century inheritance transfers. The “rich uncle from America”—a male relative who would become wealthy enough to support the family back home—became a character in novels and movies and the subject of international legal disputes.Footnote 7
A number of challenges arose from a situation in which deceased persons and their heirs did not always reside in the same place, jurisdiction, or country. Testators, heirs, lawyers, jurists, probate judges, and governments faced the question of how to regulate and ensure the transfer of estates within families even across international borders. The greatest difficulties lay in determining applicable inheritance laws and probate procedures, identifying heirs, and transferring estates across borders. By extension, resolving conflicts between the laws of different states posed another significant challenge.
This article traces the ways in which various actors regulated transnational inheritance cases in the transatlantic domain, with a particular focus on the United States, Germany, and Russia. In doing so, it seeks to contribute to the history of international private law and the handling of legal plurality, especially concerning inheritance law across the Atlantic, from approximately 1840 to 1980.
To date, historical research on inheritance has rarely dealt with transnational estate transfers. In the extensive literature on inheritance law and patterns since the late 19th century, property transfers upon death have mostly been examined at the national level in light of inheritance laws or by focusing on practices in a particular rural region or city and thus within a single jurisdiction. Although such studies have greatly expanded current understandings of national and state laws, local inheritance practices, family structures, and inequalities in those particular regions,Footnote 8 they have also propagated, at least implicitly, the image of immobile rural or urban communities that were homogeneous with respect to ethnicity and citizenship.
At the same time, these studies only rarely feature emigrants, immigrants of foreign nationality, and inheritance transfers across legal and state borders to remote heirs. Among the exceptions is Simone Derix’s analysis of the Thyssen family of industrialists, which illustrates how wealthy families could seize opportunities for transnational estate planning from 1880 to 1960 as a means to minimize inheritance taxes and safeguard their assets from government access.Footnote 9 Marcie K. Cowley, meanwhile, was the first to demonstrate how estates became the subject of legal and diplomatic disputes between the United States and the Soviet Union during the East–West conflict spanning from the late 1940s into the late 1960s.Footnote 10
Drawing upon these foundational studies, this article expands the history of transnational estate transfers in three significant ways. First, it extends the time frame examined. This article presents, for the first time, a succinct examination of matters concerning transnational inheritance law from the 1840s to the 1980s. Second, along with the United States and the Soviet Union, the article adds Germany as a third country that can offer novel insights into transnational inheritance law. Including Germany in the analysis clarifies that the United States had already implemented blockade measures against Nazi Germany in the late 1930s that were subsequently transferred and applied to socialist countries in the aftermath of World War II. Third, the article focuses not only on court cases but also on the role of lawyers, judges, legal experts, decedents, and heirs in transnational estate transfers. To that end, extensive archival research has been conducted in German and U.S. archives, along with preliminary research in Russian and Ukrainian archives, to demonstrate the astonishing persistence of family and kinship relationships in the age of extremes.
In light of its expanded perspective on the history of transnational inheritance law, this article argues that the history of transnational inheritance transfers since the 19th century can be subdivided into three distinct periods. The first period, from the mid-19th century to 1914, witnessed the gradual development and expansion of professional networks and legal agreements designed to facilitate cross-border estate transfers. By contrast, the second period, from World War I and the October Revolution of 1917 through the late 1960s, was a time of unprecedented global disruption. Unlike the half-century before World War I, governments and probate courts complicated, delayed, and prevented inheritance transfers across state borders due to military and ideological conflicts. During the third period, beginning in the 1960s, governments, international organizations, lawyers, and families resumed efforts to create structures that would legally protect and enable cross-border estate transfers in an increasingly globalized world.
Transnational Inheritance Transfers in the Age of Nationalism and Globalization, 1840s–1914
The enormous migratory movements of the 19th century resulted in families with descendants and heirs who frequently resided in different jurisdictions if not different states. Nevertheless, the overwhelming majority of testators expressed a wish for their inheritance to remain within the family, and thus the family principle remained unchallenged. Against this background, over the course of the 19th century, migrants, lawyers, and banks, as well as diplomats contributed to the emergence and expansion of networks and legal frameworks that were intended to enable transnational inheritance transfers.
The point of departure was the migrants and migrant communities, who were bilingual, who often had relatives abroad, and who directly confronted the problem of cross-border estate planning. Their challenges gave rise to the first banks and agencies specializing in tracing heirs abroad, obtaining civil records, and processing cross-border inheritance transfers. An early example was Hoerner Bank, founded as a result of German emigration to the United States in 1849. It had offices in the United States and headquarters in Heilbronn. The New York-based international bank Knauth, Nachod & Kuhne, which regularly transferred inheritances to heirs in Germany, also worked closely with German consulates in the United States.Footnote 11 Richardson & Co existed in Philadelphia as early as 1860, and approximately 15 years later, J. B. Martindale founded the Unclaimed Money, Lands and Estates Bureau in Chicago with business partners in Western Europe ranking among its contacts. The International Claim Agency was based in Pittsburgh, Pennsylvania; James Baxter LTD in Newark, New Jersey; and John P. Payne’s law firm in New York City.Footnote 12 In St. Petersburg, the Russo-English Bank transferred estates between the United States and the Tsarist Empire.Footnote 13
Lawyers also intensified the centuries-old debate on how the laws of different jurisdictions could be reconciled in cross-border legal acts. By the 1840s, lawyers such as Joseph Story (1779–1845) in the United States and Friedrich Carl von Savigny (1779–1861) in Germany had established the legal field of private international law. From that point on, the term private international law was used to discuss the fundamental question of how to proceed and render decisions in the event of a conflict between different national laws and which national law should be applied.Footnote 14
Assisting these trends, the governments of European and U.S. states began signing bilateral agreements to harmonize different national laws and facilitate mutual administrative assistance in cases of transnational inheritance. Only months after its foundation in December 1871, the German Empire ratified a treaty with the United States. In that consular convention, both states recognized each other’s national inheritance laws and pledged to provide reciprocal administrative assistance in order to simplify the settlement of estates.Footnote 15 Three years later, the German Empire and Tsarist Empire also ratified an agreement to simplify the transfer of estates between their two countries.Footnote 16 Beyond that, all three countries entered into similar treaties with other states that also sought to regulate transnational inheritance transfers by means of bilateral agreements. As a result, up until the eve of World War I, a network of bilateral agreements emerged in the transatlantic sphere that provided a rough legal framework for transnational inheritance transfers and associated legal transactions. Each year between 1910 and 1914, the Foreign Office of the German Empire, for example, processed approximately 4,000 inheritance cases with a foreign connection and thus contributed, just as the embassies and consulates of other countries did, to the transfer of inheritances across state and legal borders.Footnote 17
Transnational Inheritance Transfers in the Age of Extremes, 1914–1960s
With the outbreak of World War I, the military and ideological disputes between the United States, Germany, and the Soviet Union sparked the instrumentalization of inheritance law and cases of inheritance for the purposes of foreign policy. The countries at war not only suspended their bilateral agreements to expedite transnational inheritance transfers but also issued regulations and laws prohibiting the transfer of inheritances to heirs in enemy countries. In the fall of 1914, the German Empire prohibited property transfers to England on September 30, to France on October 20, and to Russia on November 19.Footnote 18 As the war intensified, the fundamental prohibitions on making payments to persons in enemy countries were further specified and successively extended to the countries that later entered the war against Germany, including the United States in 1917.Footnote 19 Also in the fall of 1914, the Russian Tsarist Empire issued a decree prohibiting the transfer of estates to heirs in Germany, and the United States followed suit in 1917. The agreements and regulations supporting mutual administrative assistance to expedite transnational inheritance transfers from the prewar period between Germany, on the one hand, and the United States and the Russian Empire, on the other, were thus suspended. With the October Revolution in 1917, diplomatic relations between the United States and the Soviet Union, the successor of the Tsarist Empire, began to deteriorate rapidly, and soon, the transfer of inheritances between the two countries came to a standstill.
World War I thus marked the beginning of a half-century in which the governments of the three countries, in order to demonstrate and enforce their foreign policy interests, made transfers of inheritances from their own states to heirs in other countries difficult, delayed them, and often banned and blocked them completely or, conversely, attempted to break through these blockades. Depending on the shifting political relations between two countries, these interventions in inheritance transfers, which were no longer regarded by all governments as purely private family matters but as part of foreign policy, also shifted in their effectiveness. On the one hand, the military and ideological conflicts led to far-reaching state interventions and disruptions of the family principle in inheritance matters. On the other, despite all political obstacles, new structures and actors also emerged to facilitate inheritance transfers and continued to especially focus on inheritance transfers within the family.
The United States did not recognize the Soviet Union as a state, and the Bolsheviks abolished the categories of private property, along with the bourgeois family and nationalized banks, and, in April 1918, banned inheritance transfers.Footnote 20 As a result, the fundamental diplomatic and legal structures underpinning international inheritance transfers were dissolved. As early as 1922, however, the Bolsheviks changed their attitude toward inheritance transfers.Footnote 21 As part of their New Economic Policy, they lifted the ban on estate distributions in a bid to stimulate economic growth.Footnote 22 As part of foreign and trade politics, they also facilitated estate transfers from abroad to heirs in the Soviet Union as a means to obtain foreign currency. In this context, the most significant measure was establishing the Credit Bureau, also in 1922. Under its director, Aleksandr Jakovlevič Rozenštejn, judges and lawyers in Moscow were tasked with assisting Soviet nationals in accessing their financial assets held abroad, including savings accounts, insurance policies, and inheritances.Footnote 23 Despite some success, that initial Soviet attempt to aid Soviet citizens in obtaining their inheritance from abroad was short-lived. By the early 1930s, the Credit Bureau was dissolved, and Rozenštejn was executed during the Stalinist purges in 1937.Footnote 24
Even so, Soviet endeavors to transfer estates from foreign countries to the Soviet Union did not end there. The U.S. recognition of the Soviet Union as a country in 1933 created new diplomatic channels for inheritance transfers. Furthermore, in 1937, the Soviet Union founded the Inostrannaja Juridičeskaja Kollegija (‘Foreign Legal Collegium’), or “Injurkollegija” for short, as the successor organization of the Credit Bureau. In the decades that followed, Injurkollegija’s lawyers and legal experts began developing a global network of legal professionals and financial experts well-versed in the cross-border transfer of estates.
Among them, Charles Recht (1887–1965), a prominent figure in U.S.–Soviet legal relations from the 1930s to the 1950s, was a major early contact for Soviet lawyers in the United States.Footnote 25 Born into a Jewish family that emigrated from Bohemia in 1900, Recht graduated from New York University Law School in 1910 and became a member of the New York Bar Association the following year. After working primarily for the German and Czech-speaking immigrant community in New York, Recht gained his first experience in private international law. In the early 1920s, he began working with Soviet lawyers, which led to his first of many trips to Moscow and his establishment as a mediator between U.S. and Soviet diplomats. Beginning in the 1930s, Recht was frequently called upon as legal counsel for Soviet heirs in U.S. courts, where he specialized in the transfer of estates between the two countries. By the end of the 1930s, he facilitated estate transfers of approximately $150,000 annually from the United States to the Soviet Union.Footnote 26
At the same time, the situation for transnational families between the United States and Germany deteriorated. In the aftermath of World War I, the United States maintained its blockade on inheritance transfers to heirs in Germany, and those restrictions were lifted only following the signing of the Trade and Friendship Treaty in December 1923.Footnote 27 Afterward, in a relatively short period, state institutions and private banks on both sides of the Atlantic resumed their activities. In the fall of 1926, for example, the Alien Property Custodian informed the German Consulate General in New York that he was engaged in the process of transferring 28,000 released cases. Added to that, between 1924 and 1927, the Reich Office for Estate Affairs transferred estates from the United States to heirs in Germany totaling approximately 18 million Reichsmark.Footnote 28
However, such relative stability proved to be short-lived. When the National Socialists rose to power in Germany in 1933, their anti-Semitic policies, the “Aryanization” of Jewish property, and the expulsion of Jews from Germany soon impaired estate transfers between the two countries once again. Approximately 132,000 German-speaking individuals fled the Nazi regime in the 1930s and early 1940s in search of refuge in the United States.Footnote 29 Although the German state officially supported inheritance transfers between the United States and Germany until the United States entered the war in December 1941, in practice such support was often withdrawn for Jews and opponents of the Nazi regime. Instead, the revocation of German citizenship for Jews effectively terminated the protection of Jewish estates by German authorities, who instead proceeded to confiscate and escheat them.Footnote 30
Across the Atlantic, criticism of Germany’s discrimination, dispossession, and persecution of Jews had been mounting since the mid-1930s. It targeted not only the German government but also the bilateral agreements that obliged U.S. probate judges and administrators to transfer inheritances to German heirs. Until 1941, the U.S. State Department, citing the Friendship Treaties of 1923 and 1935 along with the 1938 agreement that prohibited discrimination based on faith, instructed estate administrators to transfer inheritances in accordance with those agreements.Footnote 31 However, as Germany’s discrimination and persecution of political opponents and Jews became increasingly known and as its aggressive expansionism intensified in the late 1930s, the State Department’s position faced increasingly strong criticism within the United States. A growing number of politicians, state government officials, and members of the House of Representatives and Senate voiced opposition to the transfer of estates from the United States to Germany.
In their public statements and letters, these critics reiterated three major arguments. First, they asserted that the German government’s discriminatory measures violated the agreed-upon principles of reciprocity and equal treatment for testators and heirs in both countries, thereby freeing U.S. states, probate judges, and lawyers from honoring those agreements.Footnote 32 Second, they argued that individuals living in Germany, particularly Jews and political opponents of the regime, would not receive their inheritances from abroad, because the German state would likely confiscate them. They contended that transferring inheritances under those circumstances would therefore violate their duty to ensure that the rightful heirs received the funds. In 1940, U.S. Judge A. B. Duncan exemplified that sentiment upon refusing to release an estate to heirs in Germany: “I have nothing against the German people, but I know that when money is sent there they do not receive it. It all goes to the government. The fact that Hitler has refused to allow money left by Germans to be sent to heirs in this country is another reason why I do not intend to order any money from this country sent to heirs in Germany.”Footnote 33
Last, critics pointed to the imbalance in bilateral inheritance transfers, which, though difficult to quantify with any precision, was generally believed to favor transfers from the United States to Germany. They argued that unrestricted transfers amounted to supporting, if not subsidizing, the German government and its (war) policy, and should therefore be restricted or halted entirely. In 1938, William R. Vallance, a lawyer from Iowa, advocated a change in the law to prevent inheritance transfers to Germany and, as justification, cited the following argument: “The United States is again being played for a sucker. In view of the recent developments in Europe of Germany taking over Austria, this matter becomes more important, and if Germany has sufficient money to create disturbances in Europe, I do not see why we should play Santa Claus to them in the matter of inheritances.”Footnote 34
U.S. critics of the bilateral agreements between the United States and Germany did not stop at public statements. Beginning in the late 1930s, political initiatives against estate transfers to the German Reich were launched at both the federal and state levels. Samuel Dickstein, a Democratic congressman from New York, introduced a bill in the House of Representatives in May 1938 to prohibit wealth transfers to certain countries that plainly targeted the German Reich.Footnote 35 Although such initiatives were unsuccessful at the federal level, individual states such as Oregon amended their laws accordingly.Footnote 36
The German embassy watched these developments closely and sought to prevent all blockades of estate transfers. In 1939, the German ambassador presented the U.S. State Department with newspaper clippings and court decisions reporting on denied inheritance transfers and called on the U.S. government to release said inheritances.Footnote 37 In response, the State Department replied that it was adhering to existing treaties and cited cases in which estate transfers had taken place. Among others, the Department reported that, in November 1939, two months after the outbreak of war in Europe, an inheritance amounting to $25,000 had been transferred to heirs living in Germany.Footnote 38
In contrast to the official stance of the U.S. government, however, blockades of inheritance transfers to Germany increased through the summer of 1939. In some cases, lawyers even explicitly asked the U.S. State Department whether it could support them in these measures.Footnote 39 Although the State Department did not comply, the outbreak of the war in Europe opened up new possibilities for delaying and blocking transfers. In one such case, an heir had died as a German soldier in Norway, whereupon the United States insisted on receiving his death certificate and wanted to confirm the heirs of the fallen soldier before paying out the inheritance.Footnote 40 In another case, a U.S. judge argued that heirs to an estate were living in the territory of the former Czechoslovakia, which made it unclear how the legal situation should be assessed.Footnote 41 In view of the war, German authorities, lawyers, and heirs found it difficult as well as time-consuming to verify those justifications. Under wartime conditions, the demands for further evidence could hardly be met, and, as a result, U.S. judges did not release the inheritances in question.
Eventually, on June 14, 1941, U.S. President Franklin D. Roosevelt ordered a freeze on assets, now enemy assets, located in the United States. The National Socialists responded on June 25, 1941, with a circular from the Reich Office for Foreign Exchange Control that prohibited the sending or transfer of assets to the United States. Both countries now placed all inheritances under trusteeship, and their governments thus once again issued regulations aimed at interrupting transnational inheritance transfers.Footnote 42
The United States maintained its blockades well into the aftermath of World War II. From the perspective of U.S. judges, lawyers, and the State Department, as well as Jewish organizations, the initial issue to be addressed was that of reparations and compensation payments for all Jews expelled or murdered.Footnote 43 However, long before the issue could be settled, the State Department altered its stance upon the advent of the Cold War. The intensifying threat in Eastern Europe hastened the incorporation of the Federal Republic of Germany into the Western alliance and prompted the United States to lift its embargo and permit inheritance transfers to heirs in West Germany in 1951.
After 1945, Socialist nations replaced Nazi Germany as the primary adversary of the U.S. State Department, judges, and lawyers. In February 1951, the geographical scope of the U.S. Treasury Department’s regulation prohibiting the transfer of government checks to Germany underwent a shift. While the prohibition was lifted for West Germany, the Department imposed a ban on the transfer of government checks to the Soviet Union, Albania, Bulgaria, communist China, Czechoslovakia, Hungary, Poland, Romania, and the Soviet zone of occupied Germany.Footnote 44
At the same time, state legislations enacted during the 1930s and 1940s to block estate transfers to Germany and countries under German occupation shifted their geographical focus. In 1951, the states of California, Massachusetts, Michigan, Missouri, Montana, Nebraska, New York, Oregon, Pennsylvania, and Vermont repealed their old statutes and enacted new ones aimed at protecting estates for heirs in socialist countries from their communist dictators. To justify the new legislation, the state courts often relied upon earlier cases such as Clark v. Allen involving recipients in Nazi Germany.
Beyond that, the legal justification for what would soon be called Iron Curtain statutes for denying inheritance transfers to the Soviet Union was based on three principal arguments.Footnote 45 First, U.S. government employees and legal scholars claimed that the Soviet government would use the “hard” dollars received for their own political goals against the United States instead of transferring the estates to the rightful heirs in the Soviet Union. Every inheritance transfer into the Soviet Union, as one California judge put it in 1948, would therefore strengthen a country that “kicks the United States in the teeth all the time.” Footnote 46 Second, U.S. citizens involved in estate settlements argued that they were protecting the assets for (the) Soviet heirs until they were completely satisfied that these heirs would receive their inheritance and have the benefit, use, and control of money sent to them. In doing so, they relied on statements such as that of David H. Dubrowsky, the former head of the Russian Red Cross, who had claimed in Collier’s Weekly in 1940 that citizens of the Soviet Union were not allowed to own private property and that the Soviet state “feels free to confiscate all or a substantial portion of all bequests coming to its nationals from foreign countries.”Footnote 47 Third, U.S. politicians and judges argued that no reciprocal agreements were established between the United States and the Soviet Union. In other words, they claimed that because heirs in the United States were not allowed to receive an inheritance from an estate in the Soviet Union, the United States should do the same, and thus they prohibited the transfers of U.S. estates into the Soviet Union.Footnote 48 Stalin’s internal and foreign policy gave U.S. legal scholars and diplomats at least some indications to believe that Soviet heirs did not receive their inheritance. Although Soviet inheritance law did not explicitly mention a “foreign heir,” it did restrict testamentary freedom, and from 1950 to 1956, the Supreme Court of the Soviet Union and the Council of Ministers did not publish reports of their cases and decrees.Footnote 49
In the Soviet Union, politicians and legal scholars were upset by the rulings and rhetoric of U.S. officials and judges alleging that they put the Soviet Union on the same level as Nazi Germany. At the same time, they saw transnational estate transfers processed by the Soviet State Bank as an opportunity to obtain Western foreign currency and revenue by taxing them. Thus, after the restrictions were applied to their country in 1951, and especially after Stalin’s death, they made great efforts to have the restrictions repealed.
The primary agency tasked with that responsibility by the Soviet government was the aforementioned Injurkollegija. Led by Alexander F. Volchkov, a former judge at the Nuremberg trials and a renowned legal scholar, Injurkollegija’s primary function was to “handle cases involving Soviet citizens and organizations abroad, as well as those involving foreigners residing in the Soviet Union, particularly inheritance cases.”Footnote 50 Succession cases constituted approximately two-thirds of Injurkollegija’s workload, and to facilitate estate transfers into the Soviet Union and to lift U.S. restrictions, Injurkollegija employed several strategies.
First, Injurkollegija provided evidence that Soviet heirs received their inheritance from estates in the United States. Therefore, in the mid-1950s, the Khrushchev government initiated several international committees composed of members from the Soviet Ministry of Foreign Affairs, the U.S. embassy in Moscow, U.S. legal scholars including Harold J. Berman, Soviet diplomats, and Soviet legal scholars. Those committees were tasked with independently investigating the actual application of Soviet laws, and all of them concluded that Soviet heirs had received their inheritances.Footnote 51 Even in complex cases in which fulfilling a decedent’s last will and testament was challenging, Injurkollegija made significant efforts to distribute the estate according to the testament. For example, Abraham Tulin’s will stipulated the establishment of a trust to assist “the poor among the Jews of Chomsk.” However, after World War II, there were virtually no Jews, let alone Jewish philanthropic organizations, remaining in Chomsk, which was then part of Belarus. Following extensive discussions with the U.S. embassies in Moscow and Warsaw, Charles Recht was able to redirect those funds to a Jewish community near Minsk.Footnote 52 Injurkollegija also actively supported heirs in the United States and facilitated the transfer of their inheritances from the Soviet Union into the United States. Both Injurkollegija and Soviet legal scholars were eager to avoid situations in which heirs in the United States did not receive their inheritances, for they believed that it would create problems and be used by U.S. judges to distort the position of foreigners attempting to secure inheritances from Soviet citizens.Footnote 53
Second, Injurkollegija produced reports demonstrating that Soviet heirs possessed full control over their inherited funds.Footnote 54 To illustrate the opportunities available to Soviet heirs, they highlighted the expanding network of Beriozka stores in the Soviet Union. These stores offered an array of Western consumer goods that heirs could purchase with their inheritances. In other words, the reports sought to suggest that Soviet heirs were not restricted in the use of their inheritance but enjoyed the same consumer choices as U.S. citizens. The catalogs produced by Beriozka stores even featured one- to four-bedroom apartments for sale, priced respectively from $1,000 to $4,000–$6,000.Footnote 55 Given that the majority of the transferred estates were valued between a few hundred dollars and to $2,500–$3,500, Injurkollegija and Harold J. Berman frequently provided testimony in U.S. courts indicating that the Soviet heirs could easily expend their entire inheritance on Beriozka stores and other consumer goods.Footnote 56
Third, the Soviet Union reformed the legal framework for (transnational) inheritance transfers, including by renewing or re-entering bilateral legal aid agreements with, among other countries, France in 1936, Greece in 1956, and both West Germany and Austria in 1959.Footnote 57 In 1961, the Soviet Union even amended its federal law to facilitate inheritance transfers between the Soviet Union and other states. The new Soviet Principles of Civil Legislation stated that “foreign citizens enjoy in the Soviet Union the same civil law capacity as Soviet citizens” and “have access to Soviet courts and enjoy equal procedural rights with Soviet citizens,” adding that “matters of succession are governed by the law of the country in which the deceased had his [her] last permanent residence.”Footnote 58 Soviet inheritance laws were also amended to remove restrictions on individuals to whom estates could be bequeathed, thereby aligning the legal framework for inheritance transfers more closely with the frameworks of Western countries. To support this process, Soviet legal scholars published articles in English to elucidate Soviet inheritance law and to explicitly confirm its legality within the Soviet Union. In 1968, Aleksandr F. Volchkov even delivered a talk at an international conference of the American Bar Association in Philadelphia to stress the point.Footnote 59
Nevertheless, despite the aforementioned reports, committee meetings, and amendments to Soviet law, the U.S. government neither lifted its restrictions nor cooperated with Soviet lawyers or Soviet heirs. At the same time, the U.S. Treasury regulation issued in February 1951 and its restrictions in fact never applied to the transfer of estates but only to U.S. government checks. The U.S. State Department never supported the Treasury’s regulation but repeatedly stated that federal law did not restrict the distribution of estates to heirs in the Soviet Union. However, in the 1950s and 1960s, the State Department always gave the same twofold answer when asked by probate judges, lawyers, or heirs about restrictions on such transfers or federal laws or policies applicable to such cases. On the one hand, they asserted the distribution of estates to Soviet heirs was a matter of state law because no federal restrictions on such transfers existed. On the other hand, they informed inquirers that a certain Treasury regulation did prohibit the transfer of government checks to Soviet citizens and that court decisions in some states relied on that regulation to withhold the distribution of estates.Footnote 60 In practice, such vague responses sowed confusion such that, after several court trials, some probate judges in the late-1950s to mid-1960s allowed the transfer of estates, whereas others continued to block inheritance transfers to the Soviet Union.Footnote 61
With little legal leverage left, U.S. politicians and legal scholars sought out new arguments to justify their blockade. Among other claims, they cited that the fees charged by various actors involved in transnational estate transfers for their services—U.S. lawyers typically charged 25%–30% of an estate’s value for their services and expenses—essentially amounted to a nationalization of the estates. Through 1968, Harold J. Berman, who considered himself to be an exceptionally expensive expert, charged $500 for every day that he testified in court and, in the years that followed, began charging $650 per day.Footnote 62 Inheritances were subsequently transferred on Injurkollegija’s behalf to the Bank of Foreign Trade, which claimed as a fee of 10% plus expenses from the (original) estate.Footnote 63 After that, the Bank of Foreign Trade transferred all remaining funds to an account at the Soviet State Bank, which deducted another 1% for every transaction. At that point, beneficiaries could exchange their dollars for rubles against a fixed exchange rate or special checks that entitled them to purchase goods in Beriozka stores. As a result, the estate’s value shrank once again, depending on the exchange rate, by up to another 30%.Footnote 64 Referring to those cases, U.S. judges argued that the Soviet state was essentially nationalizing the estates, and some Soviet heirs somewhat agreed with that interpretation.Footnote 65
In addition, the probate system in the United States was organized and regulated not at the federal but at the state level. For that reason, probate courts in each state repeatedly required proof of reciprocity between their state and not only the Soviet Union but also the Soviet socialist republic in which the heirs resided. This requirement for this evidence was possible because the Soviet Union had for some time treated U.S. intestacy laws as a single federal law applying to all states, instead of paying attention to the different laws of different states.Footnote 66
Along with those legal attempts to justify blocking transfers to Soviet heirs, probate judges and lawyers in the United States used probate procedures and technical questions to delay property transfers.Footnote 67 Among other tactics, judges asked heirs for original or verified birth and marriage certificates and accepted documents only if they were verified by U.S. institutions (e.g., the embassy and consulates) in the Soviet Union. Such institutions would issue those verifications in person only and existed in very few Soviet cities, which made it rather difficult for Soviet heirs to obtain the required documents and verifications. Along with travel restrictions in the Soviet Union, a complicated notarial bureaucracy, and the advanced age of many heirs, the circumstances meant that few heirs were “able or willing to travel to Moscow to have their signatures witnessed.”Footnote 68 Probate courts and judges also delayed the appointment of administrators for estates, who in turn delayed the administrative procedure’s completion, and some courts would not accept papers that appointed a lawyer as a personal representative of heirs. Altogether, the combination of legal arguments and informal practices delayed and complicated estate transfers as well as increased expenses.
The measures also effectively deterred individuals in the United States from naming relatives in the Soviet Union as their heirs in their wills. Rumors, newspaper articles, and the rulings of probate courts in the United States created a situation in which at least some decedents in the United States did not know whether they were allowed to name family members in the Soviet Union in their wills and, if so, whether their family members were allowed to receive funds from their estates. Harold J. Berman and Charles Recht, for example, were repeatedly asked by their clients in the United States to determine whether they should name their Soviet relatives in their wills.Footnote 69 Relatives living at a distance were more frequently excluded from inheritance than ones living nearby.Footnote 70
In response to those concerns, Injurkollegija devised another strategy: the organization established a network of lawyers trained in foreign relations and international trade at elite schools and who specialized in international inheritance law in the Soviet Union and abroad to assist Soviet heirs with their claims.Footnote 71 In the early 1960s, Injurkollegija employed at least 15 lawyers in Moscow and by the late 1980s had 128 staff members there, along with 58 in Leningrad, Ukraine, Byelorussia, Latvia, Lithuania, Estonia, and Armenia—that is, in places where most potential heirs to foreign estates lived. Injurkollegija also collaborated closely with the Soviet Union Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of External Trade, and the Ministry of State Security.Footnote 72
Meanwhile, in Socialist “brother” states, the Soviet government began establishing similar lawyers’ colleges.Footnote 73 Following Injurkollegija’s example, the German Democratic Republic’s Ministry of Justice founded the Rechtsanwaltsbüro für internationale Zivilrechtsangelegenheiten (“Lawyers’ Office for International Civil Law Matters”) in East Berlin in 1967.Footnote 74 At the same time, the German Democratic Republic also introduced a new program to train lawyers in private international law and the inheritance laws of Western countries at the Walter Ulbricht Academy of Political Science and Law in Potsdam-Babelsberg.Footnote 75 Similar law schools and programs were established at the same time in Prague and Warsaw.Footnote 76
In the United States, Injurkollegija established a network of legal professionals, including lawyers, law firms, and other experts, with whom it collaborated closely. Those individuals, including prominent figures such as Charles Recht and Harold J. Berman, represented Soviet heirs in legal proceedings and/or provided expert testimony. Berman, a renowned expert on Soviet law, began his studies in the field while serving in the U.S. Army and subsequently pursued legal education at Yale Law School. After teaching Soviet law at Stanford University, he joined the Harvard Law School faculty in 1958. As director of the Russian Research Center, Berman oversaw studies on Soviet legal institutions, and beginning in 1961, he was repeatedly called as an expert witness on the rights of Soviet heirs in several inheritance cases.Footnote 77 Berman also observed court trials involving international inheritance transfers, represented Soviet heirs in U.S. courts, and facilitated the transfer of inheritances to the Soviet Union. Berman was a member of the aforementioned bilateral committee, and he published multiple books and more than 40 articles on those topics, all advocating for cooperation with the Soviet Union. His expertise was grounded in extensive research and personal interactions with legal scholars and jurists from the Soviet Union, whom he sometimes invited to Harvard, and he himself also made multiple trips to the Soviet Union,Footnote 78 as well as lectured at Moscow University in the 1961–1962 academic year.Footnote 79 Another important partner was the New York-based law firm Wolf, Popper, Ross, Wolf & Jones, with which Injurkollegija worked closely in the preparation and litigation of lawsuits. In parallel, Wolf, Popper, Ross, Wolf & Jones collaborated with fifteen other law firms in other U.S. cities that specialized in transferring inheritances to the Soviet Union.Footnote 80
Based on these transnational networks of Socialist and Western lawyers specializing in Western countries’ inheritance law and litigation systems and in response to the various delay tactics of U.S. courts, Injurkollegija and its agencies encouraged their clients to sue the probate judges and estate executors who did not release their inheritance. At least since 1962, the agency tasked a high-ranking team of legal experts with handling the court cases of Soviet claimants to estates of deceased U.S. citizens.Footnote 81 The team included Alexander F. Volchkov, whom the U.S. State Department considered to be highly trained and primed for trial work in the United States. Other distinguished members were Professors Sergei Bratus and Lazar Adolfovich Lunts. While Bratus was a leading Soviet expert on questions of civil law, a teacher at most of the major Soviet law schools, and a principal drafter of the 1962 code, Lunts had taught international law in the Soviet Union since 1918 and was a senior member of the All Union Institute of Juridical Sciences and a member of the Editorial Board of the Soviet International Law Yearbook. On top of that, both academics had published numerous books and articles on civil and international law.Footnote 82 Additional support came from Wolf, Popper, Ross, Wolf & Jones and Harvard professor, Harold J. Berman.
In the United States, the Soviet strategy prompted a corresponding response that resulted in the establishment of several research centers on Soviet and international private law, the increased specialization of legal scholars, and, in turn, disputes in scholarly journals and in courts concerning the rightful legal interpretations of those laws and international agreements. A leading expert was Vladimir Gsovski (1891–1961), chief of the Foreign Law Section of the Law Library of the Library of Congress. Until his death in 1961, Gsovski published not only English translations of Soviet civil laws, which became important standard works, but also several articles on the interpretation of Soviet civil law.Footnote 83 A valuable contact and expert for the U.S. State Department, Gsovski was also an advisor in court and, to some extent, Berman’s adversary.Footnote 84
Transnational Inheritance Transfers in the Second Age of Globalization, 1960s–1980s
From 1965 to 1975, the U.S. approach to estate transfers to heirs in Socialist countries shifted. The previous practice of denying and delaying international inheritance transfers was replaced by a renewed emphasis on cross-border inheritance transfers, in a transformation initiated by three major developments. First, the Soviet Union and its allies successfully resolved two high-profile inheritance disputes: In re: Estate of John Larkin (1965), heard by the California District Court of Appeal, and Zschernig v. Miller (1968), decided by the U.S. Supreme Court. The Larkin case, won by the advocates of estate transfers to heirs in the Soviet Union, attracted significant attention due to involving prominent legal experts on both sides, including Alexander F. Volchkov and Professor John N. Hazard of Columbia Law School and the Russian Institute. In establishing a clear legal precedent, the Larkin ruling sent a national and international message that estate transfers from the United States to the Soviet Union were legally permissible.Footnote 85
Despite the considerable publicity surrounding In re: the estate of John Larkin, some courts and states persisted in hindering inheritance transfers to heirs who resided in socialist countries. The practice culminated in the 1968 U.S. Supreme Court case of Zschernig v. Miller,Footnote 86 which arose after the Oregon Supreme Court initially refused to release an inheritance to heirs residing in the German Democratic Republic. Their attorney, Peter A. Schwabe, a renowned expert in inheritance transfers to socialist countries, successfully challenged the decision before the U.S. Supreme Court. Schwabe’s advocacy, bolstered by his collaboration with Harold J. Berman and Wolf, Popper, Ross, Wolf & Jones, led to the eventual repeal of the so-called “Iron Curtain statutes” in various states.Footnote 87
Second, U.S. officials, increasingly aware of the success of Soviet heirs and their attorneys in U.S. courts, began anticipating potential losses in future cases. The U.S. State Department as well as the Department of Justice feared that the Soviet Union would exploit those successes in high-profile court cases in their international struggle for the hearts and minds of Asian and African people and in domestic propaganda, all to make the U.S. justice system seem rigged and unjust. The fear was no doubt warranted. In the Soviet Union, major newspapers regularly reported extensively on the success of Soviet lawyers in U.S. courts.Footnote 88 In 1968, to prevent additional losses, the State Department informed lawyers and judges that estate transfers to socialist countries were permissible and that the U.S. Treasury Department had lifted a longstanding prohibition against sending federal checks to the Soviet Union.Footnote 89
The rulings issued by the courts and the Treasury Department’s announcement had an immediate, profound impact on probate courts. As early as January 1968, Carl E. Walstrom, probate judge in Worcester, Massachusetts, wrote to Robert J. Silberstein of Wolf, Popper, Ross, Wolf & Jones that “because of the explanation given by you and Professor Berman and because of the several cases which have come to my attention, I am now decreeing that it is proper to send funds to the people to whom they belong.”Footnote 90 Silberstein, who had represented heirs from socialist countries in many of those court cases, also informed Harold J. Berman in November 1971 that “the problems we have in the courts have diminished.”Footnote 91
Third, the shift toward facilitating inheritance transfers was further cemented by international cooperation aimed at harmonizing laws across countries. In the 1960s, Western states began initiating efforts to standardize inheritance law, as exemplified by the 1961 Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.Footnote 92 The trend continued after the U.S.–Soviet détente and culminated in the 1973 Washington Convention Providing a Uniform Law on the Form of an International Will.Footnote 93 The conference, held just a few years after intense Cold War legal disputes, focused not on past clashes but on the increasing global mobility of individuals worldwide, and its participants underscored the need for a legally sound framework for cross-border property transactions. Further progress was made with the 1975 Helsinki Final Act and conferences organized by the International Institute for the Unification of Private Law.Footnote 94 By the mid-1970s, Cold War tensions had lessened, and the focus of international lawyers shifted toward facilitating cross-border property and estate circulations.
After the mid-1970s, lawsuits involving inheritance transfers to socialist countries shifted from fundamental questions of legality to more specific interpretations of family and inheritance laws. Wolf, Popper, Ross, Wolf & Jones continued to represent Soviet heirs, and Harold J. Berman remained a prominent expert witness in those cases.Footnote 95 However, the fundamental right of Soviet heirs to U.S. estates was increasingly acknowledged. Reflecting that shift, Soviet media began publishing articles on transnational estate planning in the 1980s, and U.S. legal scholars even discussed whether Soviet inheritance law in fact differed from U.S. law.Footnote 96
Conclusion
Since the mid-19th century, migration and shifting borders have significantly influenced estate planning and inheritance transfers in the transatlantic world. As descendants, estates, and heirs have increasingly been dispersed across national boundaries, cross-border inheritance has become a frequent matter. However, despite their historical significance, transnational inheritance transfers have received limited scholarly attention. This article therefore offers, for the first time, a comprehensive picture of the period and its array of diverse actors, ranging from government agencies to private individuals.
The first phase, extending from the mid-19th century to World War I, involved the development of administrative structures and legal frameworks to facilitate transnational inheritance transfers. States, lawyers, banks, and heir-tracing agencies played pivotal roles in the endeavor. The second phase, spanning from World War I to the mid-1960s, was characterized by new restrictions on inheritance transfers to heirs in “enemy” countries due to intensified military and ideological conflicts. The third phase, beginning in the mid-1960s, marked a renewed effort to facilitate cross-border inheritance transfers as states, lawyers, and banks began actively promoting the transnational circulation of property once again.
By focusing on transnational inheritance transfers, this article establishes a connection between two previously disparate research areas: historical inheritance research and international history. On the one hand, cross-border estate transfers involved not only testators, heirs, and local lawyers and probate courts, but also, in several cases, experts in private international law, transnational heir tracing firms, and the consulates and embassies of several states. Conversely, diplomatic relations between certain countries had a significant impact on the administration of cross-border estate transfers. A more detailed analysis of this intricate network, which involved legal and financial experts from a range of transatlantic countries, and its implications for private international law, represents a promising avenue for future research in global legal history, diplomatic history, and the history of capitalism.
Acknowledgments
I would like to thank Simone Derix, Dietmar Friesenegger, Matthew Gilmore, Hendrik Hartog, Dirk van Laak, Simone Lässig, Ute Schneider, and Richard Wetzell, as well as the two anonymous reviewers. The discussions with them and their comments were always insightful and encouraging. They inspired my work and greatly improved the article.
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