If a foreign national dies while living in Spain, owns a property or other assets in Spain, or leaves beneficiaries residing in another country, more than one legal system may appear to be relevant to the estate. For this reason, inheritance in Spain for foreigners can raise complex questions of international succession law.
However, the location of an asset is not necessarily what determines the law governing the succession. For deaths occurring on or after 17 August 2015, Regulation (EU) No 650/2012 on matters of succession provides the principal private international law framework applicable in Spain. One of its central objectives is to avoid the fragmentation of cross-border estates by determining, in principle, a single law governing the succession as a whole.
This distinction is particularly important for international families and foreign owners of Spanish property: owning a house in Spain does not automatically mean that Spanish succession law will govern the inheritance of that property.
1. Key Takeaways: Inheritance in Spain for Foreigners
- For deaths occurring on or after 17 August 2015, Regulation (EU) No 650/2012 is central to determining jurisdiction and applicable law in international succession cases falling within its scope.
- As a general rule, the law applicable to the succession as a whole is the law of the State in which the deceased had his or her habitual residence at the time of death.
- A person may, subject to the requirements of the Regulation, choose the law of the State whose nationality he or she possesses to govern the succession.
- The applicable succession law and the country in which an asset is physically located are not necessarily the same.
- Regulation 650/2012 follows, in principle, the concept of unity of succession: the designated law governs the succession as a whole, rather than applying a different succession law to each asset according to its location.
- Taxation is a separate issue. The EU Succession Regulation does not determine inheritance tax liability.
- Foreign heirs inheriting assets in Spain may have Spanish tax and administrative obligations even where the succession itself is governed by foreign law.
- In qualifying cross-border EU successions, the European Certificate of Succession may facilitate proof of the status and rights of heirs, legatees, executors or administrators in another Member State.
2. Which Law Governs an International Inheritance in Spain?
The starting point is Article 21 of Regulation (EU) No 650/2012.
Unless otherwise provided by the Regulation, the law applicable to the succession as a whole is the law of the State in which the deceased had his or her habitual residence at the time of death.
This represented a significant change for international successions connected with Spain. The relevant connecting factor is no longer simply the deceased’s nationality. For successions falling within the Regulation, habitual residence is generally the primary connecting factor.
There is an exception where it is clear from all the circumstances that, at the time of death, the deceased was manifestly more closely connected with a State other than the State of habitual residence. In that situation, Article 21(2) provides that the law of that other State may apply.
The exception should not, however, be treated as a substitute for properly determining habitual residence. Establishing habitual residence may itself require a detailed assessment of the deceased’s personal, family and professional circumstances.
3. What Does “Habitual Residence” Mean in Succession Law?
The Regulation does not reduce habitual residence to a purely formal test such as nationality, tax residence, registration with a municipality or ownership of a home.
The assessment requires an overall evaluation of the circumstances of the deceased’s life during the years preceding death and at the time of death, taking into account factors such as the duration and regularity of the deceased’s presence in a particular State and the conditions and reasons for that presence.
The objective is to identify a sufficiently close and stable connection with the State concerned.
This can become particularly important for foreign nationals who divide their time between Spain and another country, retirees living in Spain, internationally mobile professionals or individuals whose family, business and property interests are spread across several jurisdictions.
Habitual residence should therefore not be assumed merely because a person owned a property in Spain or spent substantial periods here.
4. Can a Foreign National Choose Which Law Governs the Inheritance?
Yes, within the limits established by the EU Succession Regulation.
Article 22 allows a person to choose the law of the State whose nationality he or she possesses at the time of making the choice or at the time of death to govern the succession as a whole. A person holding more than one nationality may choose the law of any State whose nationality he or she possesses at the relevant time.
This choice of law is commonly referred to as professio iuris.
The choice must be made expressly in a declaration in the form of a disposition of property upon death, or must be demonstrated by the terms of such a disposition.
This can be extremely significant for foreign nationals living in Spain. For example, a person whose habitual residence at death is in Spain may potentially have Spanish succession law applied by default, but may have validly chosen the law of his or her nationality to govern the succession.
Whether such a choice is appropriate requires individual advice. The legal consequences may differ substantially depending on the succession rules of the law chosen, the family circumstances of the testator and the structure of the estate.
5. Does Spanish Law Automatically Apply to Property Located in Spain?
No. This is one of the most common misconceptions concerning inheritance in Spain for foreigners.
Regulation 650/2012 generally adopts the principle that the law identified under its conflict-of-law rules governs the succession as a whole. Article 23 expressly provides that the law determined under Articles 21 or 22 governs the succession as a whole.
Consequently, the mere fact that the deceased owned an apartment, villa or other property in Spain does not, by itself, establish that Spanish substantive succession law governs the inheritance of that asset.
The applicable law may be Spanish law, but it may also be the law of another State, depending principally on habitual residence and any valid choice of law made by the deceased.
Nevertheless, the location of Spanish assets remains highly relevant for other purposes. Spanish formalities, property registration requirements and taxation may still have to be dealt with in Spain even where foreign law governs the succession.
6. Does the EU Succession Regulation Apply to British Citizens?
This question requires an important distinction.
The United Kingdom did not participate in Regulation 650/2012. However, that does not mean that the Regulation is irrelevant whenever a British citizen is involved.
Spanish authorities determining the law applicable to a succession within the scope of Regulation 650/2012 apply the Regulation’s conflict-of-law rules. Those rules have universal application: the law designated by the Regulation may apply whether or not it is the law of an EU Member State.
Accordingly, the succession of a British national habitually resident in Spain may fall to be analysed under the Regulation by the Spanish authorities. Equally, a British national may, subject to the requirements of Article 22, choose the law of his or her nationality to govern the succession.
The interaction between the Regulation and the private international law rules of a non-participating or third State can nevertheless create additional complexity and should be assessed on the facts of the particular estate.
7. What Does the Applicable Succession Law Determine?
Article 23 of Regulation 650/2012 gives the applicable law a broad scope. Among other matters, it may govern:
- The causes, time and place of the opening of the succession;
- The determination of beneficiaries, their respective shares and any obligations imposed upon them;
- The succession rights of a surviving spouse or partner;
- The capacity to inherit;
- Disinheritance and unworthiness to inherit;
- The transfer of assets, rights and obligations forming part of the estate;
- The powers of heirs, executors and other administrators of the estate;
- Liability for the debts of the estate;
- Restrictions on the freedom to dispose of property upon death, including certain rights of persons close to the deceased;
- Obligations to restore or account for gifts or advances where relevant to determining beneficiaries’ shares; and
- The sharing and distribution of the estate.
It is therefore important to identify the applicable law correctly before assuming who is entitled to inherit or what share each beneficiary should receive.
8. What If There Is a Spanish Will and a Foreign Will?
The existence of more than one will is not unusual in international estates. A foreign national may, for example, have executed a will in his or her home country and later execute a Spanish will dealing with Spanish assets.
The existence of several testamentary documents requires careful analysis. It is necessary to establish their scope, formal and substantive validity, applicable law and, crucially, whether a later testamentary disposition has revoked an earlier one in whole or in part.
It should therefore never be assumed that a Spanish will automatically overrides every previous foreign will, or vice versa.
Where an estate has connections with several jurisdictions, testamentary planning should ideally ensure that the different instruments are expressly coordinated so that unintended revocation or inconsistency is avoided.
9. Do Foreigners Need a Spanish Will?
Not necessarily, but if they own assets in Spain, it is highly recommendable.
A foreign will may potentially be effective in relation to Spanish assets, subject to the applicable rules concerning succession and the formal validity of testamentary dispositions.
Nevertheless, in appropriate circumstances, having a properly coordinated Spanish will may facilitate the administration of Spanish assets after death. Whether it is advisable depends on the individual’s nationality, habitual residence, family circumstances, existing testamentary arrangements and the location and nature of the assets.
The correct question is therefore not simply “Do foreigners need a Spanish will?” but rather whether a Spanish will would improve the legal and practical organisation of the individual’s cross-border succession.
10. What Is the European Certificate of Succession?
The European Certificate of Succession (ECS) was created by Regulation 650/2012 to facilitate the administration of cross-border successions within participating EU Member States.
It may be used, in particular, by heirs, legatees with direct rights in the succession, executors of wills and administrators of estates who need to invoke their status or exercise their rights or powers in another Member State.
The Certificate does not replace national documents in every succession and its use is not mandatory. Its value lies in facilitating proof of succession rights across borders without requiring a separate national procedure merely to establish the matters certified.
Whether an ECS is appropriate will depend on the countries and assets involved in the particular succession.
11. Does EU Succession Law Determine Spanish Inheritance Tax?
No. Applicable succession law and inheritance taxation must be kept conceptually separate.
Regulation 650/2012 expressly excludes revenue, customs and administrative matters from its scope. It does not harmonise inheritance tax within the European Union and does not determine which State may tax an inheritance.
Consequently, an estate may be governed substantively by the law of one State while giving rise to inheritance tax obligations in Spain.
Foreign heirs may therefore have Spanish tax obligations where the relevant connecting factors exist, including in relation to Spanish assets. In cases falling within the competence of the Spanish State tax authorities for non-residents, inheritance acquisitions are generally declared using Form 650 (Modelo 650).
The amount ultimately payable cannot safely be determined merely from the nationality or residence of the heir. The residence of the deceased and beneficiaries, location of assets, applicable State or Autonomous Community rules, relationship between deceased and beneficiary and other circumstances may all be relevant.
12. So, What Happens If I Inherit a Property in Spain?
Inheriting Spanish real estate involves both succession and property-law formalities.
Before the property can normally be registered in the heir’s name, it will be necessary to establish the death, identify the relevant testamentary or intestate succession, determine the applicable law, establish the identity and rights of the beneficiaries, deal with acceptance and distribution of the estate as required, and comply with the applicable Spanish tax obligations.
Depending on the circumstances, foreign documents may need to be obtained, translated and, where applicable, legalised or apostilled before they can be used in Spain.
The inheritance may then need to be documented in a form suitable for registration with the Spanish Land Registry.
This is an area in which International Succession Law and Spanish Real Estate Law frequently overlap, particularly where foreign heirs intend subsequently to retain, rent or sell the inherited property.
13. What Should Foreign Heirs Do First?
Before taking substantive steps, it is advisable to establish the complete international structure of the estate.
This normally means identifying the deceased’s nationality or nationalities, habitual residence at death, existing wills or other dispositions upon death, any choice-of-law clause, beneficiaries, matrimonial or registered-partnership property issues where relevant, and the location and nature of the assets and liabilities.
Only after these elements have been identified can the applicable succession law, competent authorities and Spanish formal and tax requirements be analysed reliably.
International estates should therefore be approached as a whole rather than treating the Spanish asset in isolation from the deceased’s wider succession.
14. Frequently Asked Questions About Inheritance in Spain for Foreigners
Does Spanish inheritance law apply because the deceased owned property in Spain?
Not necessarily. Under Regulation 650/2012, the applicable law is generally determined by the deceased’s habitual residence at the time of death, subject to the Regulation’s other rules and any valid choice of law. The designated law normally governs the succession as a whole.
Can a foreigner choose their national law to govern their inheritance?
Potentially, yes. Article 22 of Regulation 650/2012 allows a person to choose the law of a State whose nationality he or she possesses at the time of making the choice or at the time of death, subject to the formal and substantive requirements of the Regulation.
Does a British citizen living in Spain have to apply Spanish inheritance law?
Not necessarily. Habitual residence in Spain may result in Spanish law being applicable under the general rule, but a British national may potentially choose the law of his or her nationality under Article 22. Existing wills and the circumstances of the individual succession must be examined.
Do I need a Spanish will if I own a house in Spain?
There is no general rule requiring every foreign owner of Spanish property to make a Spanish will. However, a properly drafted and coordinated Spanish will may be useful in some cross-border estates. Advice should take account of any wills already existing in other jurisdictions.
If foreign law governs the succession, do I still have to pay inheritance tax in Spain?
Potentially, yes. The law governing the succession and inheritance taxation are separate questions. Regulation 650/2012 does not regulate inheritance tax, and Spanish tax obligations may arise even where foreign substantive succession law applies.
Can I inherit and then sell a property in Spain?
Yes, but the inheritance will normally need to be properly documented and the heir’s title dealt with for Spanish registration purposes before or in connection with the subsequent sale. Applicable inheritance taxes and other tax consequences should also be considered.
15. Legal Advice on Inheritance in Spain for Foreigners
Inheritance in Spain for foreigners frequently involves more than Spanish succession law alone. The deceased’s habitual residence, nationality, choice of law, wills, family circumstances and assets in different countries may all affect the legal analysis.
I advise international clients on Spanish succession matters and cross-border estates, including inheritances involving property and other assets located in Spain. Where an estate also requires advice or action in another jurisdiction, the Spanish aspects of the succession can be coordinated with lawyers or other professionals in the relevant country.
Advice is available directly in English, French and Spanish.
If you are dealing with an inheritance involving Spain, or wish to plan the succession to your Spanish assets, contact me to arrange a confidential legal consultation.
