Free Testamentary Disposition for UK Citizens: Only if You Own Property in the UK
It has been widely believed that British citizens who own property in Spain will invariably be subject to English law, which determines freedom of disposition of assets, as opposed to the more restrictive Spanish inheritance law where children will get 2/3 of the estate and the spouse the life interest of one third (and who may not be the preferred choice of the testator/testatrix!).
The reason for this is that 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 our case, English law, which takes relevance but surprisingly, it conversely stipulates that for property located abroad it will be the laws where the property is located which are to be applied. And in Spain forcible inheritors will almost always challenge a will if they don’t receive what they are supposed to get according the Spanish Civil Code, unless of course there are more debts than assets!
The above legal quarrel between both legal systems is now resolved by the Spanish Supreme Court, in various rulings, to the effect that if a British testator dies in Spain and:
- has moveable assets and property only in Spain then Spanish law applies.
- has property in the UK and Spain then English law applies.
- has movable assets in Spain only then English law applies.
- has property in Spain and assets in the UK (but not property), then Spanish law applies.
It normally happens that if no inheritor challenges the application of English law, which is normally typed into the will as the governing law, it will apply regardless of the above.