International Inheritance in Spain: Which Law Applies?

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Globalization and the free movement of people have profoundly transformed succession law, making cross-border inheritances an increasingly common reality. When a citizen dies holding a nationality different from that of their country of residence, or leaving assets spread across several States, a complex and crucial question immediately arises: which law governs the succession, and which courts or notaries are competent to process it? In the Spanish legal system, the answer to this question is no longer found exclusively in the Código Civil (Civil Code), but in a unified European regulatory framework that seeks to provide legal certainty, but which still harbors important tax and regional civil law peculiarities that should be understood in detail to avoid costly mistakes.

The Regulatory Framework: The European Succession Regulation

To determine which law applies to an international inheritance in Spain, the absolute reference standard is Regulation (EU) No 650/2012 of the European Parliament and of the Council, also known as the European Succession Regulation. This regulation, applicable to the successions of persons who die on or after August 17, 2015, unified the criteria of the member states of the European Union (with the exception of Denmark and Ireland).

The General Rule: Habitual Residence

Regulation 650/2012 broke with previous Spanish legal tradition (which applied the law of the deceased's nationality according to Article 9.8 of the Código Civil). Since its entry into force, the general rule is that the law applicable to the entirety of the succession will be that of the State in which the deceased had their habitual residence at the time of death.

This means that if a French citizen dies having their habitual residence in Madrid, the law applicable to their inheritance will, by default, be the Spanish Código Civil. This law will govern aspects as crucial as who the forced heirs are, the legítimas (statutory forced shares), the validity of the will, and the distribution of assets, regardless of whether these assets (movable or immovable) are located in Spain, France, or any other signatory country.

The Key Exception: "Professio Iuris" or Choice of Law

To prevent the law of habitual residence from being applied against the citizen's wishes, the Regulation introduces a fundamental tool in its Article 22: the power to choose in a will that the law applicable to their succession be that of their nationality (or one of them, if they have multiple nationalities).

This choice of law (professio iuris) must be made expressly in a will or testamentary disposition. It is a vital resource for British, German, or Scandinavian citizens residing in Spain who wish their inheritance to be governed by the laws of their home country, which typically offer greater freedom of testation than the system of forced shares under the Spanish Código Civil.

Coexistence with Regional Laws (Derechos Forales) in Spain

When the law applicable to the international inheritance turns out to be Spanish law (either due to habitual residence or by choice of law of a foreigner with dual nationality), a second and important complexity arises: which Spanish civil law applies?

In Spain, there is no single succession law. The Código Civil (common law) coexists with the specific civil regimes of the Autonomous Communities that have their own derecho foral (regional civil law):

• Catalonia: The Fourth Book of the Codi Civil de Catalunya (Civil Code of Catalonia) establishes a legítima (forced share) of one quarter (25%) of the value of the estate for the children.
• Basque Country: Law 5/2015 on Basque Civil Law allows children to be disinherited collectively or individually, requiring only a collective legítima of one third (33.3%).
• Galicia: Law 2/2006 on Galician Civil Law sets the legítima of the children at 25% of the hereditary estate.
• Balearic Islands, Aragon, and Navarre: These regions have their own peculiarities, notably Navarre, which features almost absolute freedom of testation through the "formal forced share" of five sueldos febles (symbolic coins) or robadas of land.

To determine which of these civil legislations applies to a foreigner whose inheritance is governed by Spanish law, one must look to the concept of vecindad civil (civil status/regional citizenship), regulated in Article 14 of the Código Civil, which is generally acquired through continuous residence of 2 years (if there is an express declaration of intent) or 10 years (by continuous residence without a declaration to the contrary).

Taxation of International Inheritance in Spain

It is fundamental to understand that the European Succession Regulation regulates the civil aspects of the inheritance (who inherits and how), but does not affect taxation. Taxes are governed by the domestic tax laws of each country and by double taxation treaties.

In Spain, the applicable tax is the Impuesto sobre Sucesiones y Donaciones (ISD - Inheritance and Gift Tax), regulated by Law 29/1987.

Real Obligation vs. Personal Obligation

• *Personal Obligation (Obligación Personal): If the heir has their habitual residence in Spain, they will be taxed in Spain on all assets they receive*, regardless of where they are located in the world (worldwide assets).
• *Real Obligation (Obligación Real):* If the heir does not reside in Spain, they will be taxed only on assets and rights that are located, can be exercised, or must be fulfilled in Spanish territory (for example, a villa on the Costa del Sol or a bank account in a Spanish bank).

Equal Treatment of Non-Residents Following the CJEU Ruling

Historically, non-residents in Spain paid much higher taxes because they were subject to state regulations, which lack the tax reliefs and allowances that the Autonomous Communities offer. However, following the landmark ruling of the Court of Justice of the European Union (CJEU) on September 3, 2014, and subsequent Spanish Supreme Court jurisprudence, the law was amended so that non-residents (both from the UE/EEA and, currently, from third countries) can apply the reductions and tax bonuses of the Autonomous Community with which there is the closest connection (where the highest value of the assets is located or where the deceased resided).

Practical Step-by-Step Procedures to Process an International Inheritance

Processing an inheritance with foreign elements requires rigorous coordination of international documents. These are the steps you must follow:

1. Obtain the Death Certificate: This must be requested from the Registro Civil (Civil Registry) of the place of death. If the death occurred outside Spain, the foreign certificate must be duly apostilled or legalized and translated by a traductor jurado (sworn translator).
2. Request the Certificate of Last Wills and Insurance Contracts: In Spain, this is requested from the Ministry of Justice after 15 business days have passed since the death. This document will certify whether the deceased made a will in Spain.
3. Locate Foreign Wills: If the deceased made a will in their home country, an authorized copy of it must be obtained, which must bear the Hague Apostille (or consular legalization) and a sworn translation into Spanish.
4. Obtain the European Certificate of Succession (ECS): If the inheritance is processed in Spain but affects assets in other EU countries, this certificate (created by Regulation 650/2012) is the ideal document for heirs to prove their status in any member state without the need for additional legalization procedures.
5. Obtain a NIE for Foreign Heirs: Any heir who is not a resident of Spain and is going to acquire assets in Spanish territory must obligatorily apply for a Número de Identidad de Extranjero (NIE - foreigner identification number) at the corresponding Police Station or Spanish Consulate.
6. Inventory and Valuation of Assets: Title deeds of real estate, bank certificates showing balances on the date of death for tax purposes, and documentation for vehicles or other assets must be gathered.
7. Signing of the Deed of Acceptance and Distribution of Inheritance: This is done before a Spanish Notario (Notary). If any of the heirs cannot attend physically, they can grant a notarized power of attorney from their home country (duly apostilled).
8. Tax Settlement and Registration: Submit the Inheritance Tax return and, subsequently, register the real estate in the corresponding Registro de la Propiedad (Land Registry).

Deadlines, Amounts, and Key Figures

Timing is critical when managing international inheritances in Spain. Failure to meet deadlines can lead to severe financial penalties.

• 6 months: This is the legal deadline to file and pay the Impuesto sobre Sucesiones y Donaciones in Spain, counting from the date of the deceased's death.
• 6-month extension: An extension to file the tax can be requested within the first 5 months of the filing period. This extension will accrue late-payment interest in favor of the Tax Agency.
• 4 years, 1 month, and 15 days: This is the limitation period (statute of limitations) the Tax Agency has to claim payment of the Inheritance Tax.
• Up to 99%: This is the tax relief (allowance) offered by Autonomous Communities such as Madrid, Andalusia, or the Valencian Community on the tax liability of the Inheritance Tax for direct descendants (Group I and II), which reduces the payment to merely symbolic amounts if planned correctly.

Concrete Examples with Figures

Example 1: The Case of Pierre (French Resident in Alicante)

Pierre, a French citizen with habitual residence in Alicante (Valencian Community), dies in 2023 without having made a will. His estate consists of a villa in Jávea valued at €350,000 and a bank account in Spain with €50,000. He has two children residing in France.

• Applicable Law: Since he did not make a will or choose the law of his nationality, the law of his habitual residence applies: Spanish law (in this case, the common Código Civil, as he did not have Valencian civil status).
• Succession: His two children inherit in equal shares (€200,000 for each).
• Taxation: The children, not being residents of Spain, are taxed under real obligation. However, by applying the rules of the Valencian Community (where the assets are located), they benefit from a 99% tax relief on the tax liability if they meet the regional requirements, paying a minimal amount instead of the thousands of euros they would have paid under the pure state rate.

Example 2: The Case of William (British with "Professio Iuris")

William, a UK citizen with habitual residence in Málaga, dies having made a will in Spain. In his will, William made use of the professio iuris and expressly chose that his succession be governed by the law of England and Wales. In his will, he leaves his entire estate (an apartment in Marbella valued at €280,000) to his new partner, completely excluding his children from a previous marriage.

• Applicable Law: English law applies, as chosen in his will.
• Succession: English law recognizes almost absolute freedom of testation. Therefore, the exclusion of his children is fully valid in Spain. If Spanish law had applied by default, the children would have been entitled to a forced share of two-thirds of the inheritance.
• Taxation: William's partner, who will inherit the €280,000 apartment, must settle the Inheritance Tax in Andalusia. As she is not a direct descendant or a formalized spouse, she will belong to Group IV for kinship purposes, which will imply a high tax rate with almost no regional reductions.

Mistakes You Must Avoid

• Not making a will if you are a foreigner residing in Spain: If you do not make a will expressing your wish to be governed by the law of your nationality, the Spanish law of your residence will automatically apply, which can completely disrupt your asset distribution plans due to the rigidity of forced shares.
• Ignoring the 6-month deadline for taxes: Many foreign heirs assume that the deadlines of their home country apply to assets in Spain. Delaying the settlement of Spanish tax generates automatic surcharges ranging from 5% to 15%, plus potential penalties and late-payment interest.
• Forgetting the legalization and translation of documents: Presenting a foreign will or death certificate to a Spanish notary or registry without the Hague Apostille or without an official sworn translation will completely halt the inheritance acceptance process.
• Not applying for the NIE in time: Obtaining the NIE for non-resident heirs can take weeks or months depending on the consulate or police station. Delaying this step can cause the 6-month tax deadline to expire before you can sign the inheritance deed.

Frequently Asked Questions (FAQ)

What happens if the deceased had dual nationality?

If the deceased had dual nationality (for example, Spanish and Argentine) and resided in Spain, the Spanish law of their residence will apply by default. However, in their will, they could have expressly chosen the application of the law of their Argentine nationality if they considered its succession rules to be more beneficial for their heirs.

Is the United Kingdom subject to the European Succession Regulation?

The United Kingdom did not sign Regulation 650/2012. However, the Regulation is universal in nature. This means that if a British citizen dies having their habitual residence in Spain, the Spanish authorities will apply the Regulation and determine that the applicable law is Spanish law, unless the deceased had chosen British law in their will.

Can I inherit a property in Spain without paying taxes if I am a non-resident?

No. Whenever real estate located in Spanish territory is acquired through inheritance, there is an obligation to file and pay Inheritance Tax under the real obligation modality. However, thanks to the equalization of rights, non-residents can benefit from the substantial tax reliefs of the Autonomous Communities, which in many cases reduces the amount payable to zero or to very low amounts.

What is the European Certificate of Succession and when is it needed?

It is an official document issued by a court or a notary in an EU member state to be used in another member state. It serves to allow heirs, legatees, or executors of wills to prove their status and exercise their rights over the assets of the inheritance (such as withdrawing funds from a foreign bank account or registering a property) without the need for exequatur procedures or additional legalizations.

Summary

• The habitual residence of the deceased determines, as a general rule, the law applicable to their entire international inheritance.
• *The choice of law (professio iuris)* in the will allows foreigners residing in Spain to protect their inheritance under the laws of their home country.
• Spanish regional laws (derechos forales in Catalonia, Basque Country, Galicia, etc.) come into play if the applicable law is Spanish and the deceased had civil status (vecindad civil) in those regions.
• The tax deadline is 6 months to settle Inheritance Tax in Spain, extendable by another 6 months if requested on time.
• Non-residents have the right to apply the tax advantages and allowances of the Autonomous Communities where the assets are located.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.