Applicable Inheritance Law to Estate Located in Spain

Antonio Flores
16th of April 2004

The significant number of foreigner owners of property in Spain and what happens to their property after their death has caused some debate in the past, in particular where law in the testator’s home country and Spanish law have conflicting dispositions.

This is of great relevance for property owners as Spanish inheritance rules specify that a part of the inheritance (two thirds of it) will have to be offered to the so-called compulsory inheritors, which are primarily children and spouse and who may not be the preferred choice of the testator.

What the Spanish Civil Code Says

Under Article 9.8 of the preliminary title to the Spanish Civil Code, succession to all property, whether movable or immovable and wherever situated is determined by the law of the deceased’s nationality. In addition to this, the personal law of natural persons shall be that determined by their nationality, and will as well govern capacity and civil status, family rights and duties and succession by reason of death.

By remitting the matter to a foreign law Spanish legislators´, intentions were to protect as much as possible the cultures and traditions embodied in foreign legislations governing their nationals. There seems to be no room for misinterpretations and confusion, but one cannot say this is straightforward for UK citizens, who precisely conform the biggest foreign community in Spain.

English Law versus Spanish Law

By applying the above Spanish disposition English law takes relevance but to the surprise of many, it conversely stipulates that for property located abroad it will be the laws where the property is located which are to be applied.

This legal situation, known as double remission (´reenvio de retorno´ in Spanish), has caused many to litigate endlessly in Spanish courts (Denney v. Denney-Royde-Smith Case/ Supreme Court judgment 21 May 1999), as well as in Uk Courts (Adams Case/ Sentence of the High Court of Justice Chancery Division, Vice Chancellor Court, 31 July 1985), thus creating legal uncertainty in many thousands of British property owners when filling out their will questionnaires before their lawyers. By virtue of the above rulings, however, the situation was to be clarified to the effect that the remission of Spanish law was to be only to the UK domestic law and not to their conflict of law rules which would invariably refer back to the Spanish restrictive inheritance rules.

Freedom of testamentary disposition for UK nationals and wills done in Spain

The guiding principle of English law on the subject of succession is the freedom to make a will, which is a declaration of the freedom to determine ones own wishes for after death (certain reservations are applicable in case of a situation of intestate death). This interpretation is now prevalent and is uniformly accepted in Spain, allowing British property owners to avoid the appointment of forcible heirs and eliminating the likelihood of the testament being challenged by forcible heirs under Spanish law.
The most popular form of will in Spain, the so called ´open will´, signed before a Notary Public, is the most recommended format to give to the will as it is directly enforceable without the requirement of grant of probate. The contents of the will are printed out in notarial paper, observing certain solemnities so far as respects the execution and attestation of it, and will be signed in the presence of any Spanish Notary Public. This will can be made in a double barrel column format, in English and Spanish.

Finally, when deciding on the disposition of one’s asset it will important to take into account certain parameters in order to minimise the inheritance tax liability. Without prejudice to the proposed elimination of inheritance tax between relatives in some autonomous regions in Spain, consideration will have to be given to the following: age of inheritor, relationship of inheritor with testator, pre-existing wealth of inheritor, fiscal residency status of inheritor, status of habitual domicile of property being bequeathed and number of inheritors.

Conclusion

British property owners are free to determine who their heirs will be and avoid the appointment of forcible heirs, by means of a valid Will. Although foreign wills are valid in Spanish inheritance cases, it is always recommendable to draw up a Spanish will before a Notary public, to ease the inheritance process for our beloved ones upon our death.

Discuss this Article

James Says:

Wed, May 26th 2010, 21:36
My father and mother were jointly named on a propety in Spain currently worth 130,00 euros. My father recently died. Can anyone tell me how much inheritrence tax my mother will have to pay? My father had a spanish will that left everything to my mother. Thanks
sylvia Says:

Wed, May 26th 2010, 23:41
my mother left her home in her will in Spain cadiz, will i have to pay inheritance tax even i am her daughter?
Lawbird Lawyer Says:

Thu, May 27th 2010, 09:28
Dear Madam, Yes you are personally liable to pay Spanish Inheritance Tax. However there are applicable tax allowances if you are resident in Andalucía which may bring the tax bill to zero: Spanish Inheritance Tax: Advantages of Making a Will in Spain - 3rd September 2009 As an example, such would be the case of Inheritance Tax in Andalucía in which beneficiaries, resulting from a death occurred after the 7th of June 2008, may benefit from the following regional tax allowances: •Reduction of 99.99% in the IHT taxable base on inheriting the family home (deaths occurred since the 1st January 2003). This requires the beneficiaries being resident in Andalucía. •Reduction of 99% in the IHT taxable base on those inheriting a business providing certain conditions are met. •No IHT paid on theeEstate itself on compliance with certain requirements (i.e. inheritance taxable base < €175,000, heirs are next of kin or spouse, heirs pre-existing wealth < €402,678.11). •No IHT paid by physically handicapped (disability above 33%) with a taxable base < €250,000. Yours faithfully, Raymundo Larraín Nesbitt Yours faithfully,
ryan Says:

Fri, Jul 23rd 2010, 10:53
my father is living in spain married to his third wife he is aged 83 and not in good health we do not have much contact with him and were wondering what would happen when he does die and how to sort everything out can you help please
ryan Says:

Fri, Jul 23rd 2010, 11:08
my father is living in spain married to his third wife he is aged 83 and not in good health we do not have much contact with him and were wondering what would happen when he does die and how to sort everything out can you help please
Lawbird Lawyer Says:

Mon, Jul 26th 2010, 11:20
Dear Ryan That will pretty much depend on to whom does your father bequeaths his Spanish estate to. British and Irish citizens, in accordance with their own national laws, have free testamentary disposition meaning they can bequeath their estate to whomever they please without being constrained by forced hership rules that apply to Spanish nationals. This is the general rule. Notwithstanding the above general rule, the fine nuances that spice up life can be found in this blog post: • Free Testamentary Disposition for UK Citizens: Only if You Own Property in the UK - 22nd October 2008 Yours sincerely Raymundo Larraín Nesbitt

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