When you are living in a country that’s different to the one you were born in, many variations in the law can pass you by. Succession law in Spain is one of those that can take foreigners living here by surprise. Recent EU legislation relating to wills means that it is even more important that residents are clear about what will happen to their property when they die.
What is the Spanish succession law?
In the UK and Ireland the succession law means that when you make a will you can leave your inheritance to whoever you wish. However, Spanish succession law is different. The children are the ‘legal beneficiaries’ in Spain and by law two-thirds of the total inheritance must go to them with only one-third being left to your discretion.
Until now, that didn’t really cause a problem for residents of other nationalities. British and Irish nationals could make a Spanish will that expressed their wishes without there being any need to specify further. However, in 2015 the law is set to change.
The EU succession regulation
This new law (EU No. 650/ 2012) applies to those who ‘habitually reside’ in a country different to that of their nationality. By ‘habitually reside’ it means having lived in the country for at least the previous two years.
The law says:
“EU citizens habitually residing in Spain (Residents) will be subject to the Spanish succession law, despite their nationality, unless they specifically state in their will the wish for the succession law of their country of origin to apply”.
As different countries have different succession laws, the EU aims to regularise and clarify practice. The idea is that it is the country that you are residing in whose inheritance laws apply, unless you state otherwise. The good news is that British and Irish nationals in Spain have a choice and can invoke their own succession laws if they wish.
Who does this apply to?
If you are a resident living in Spain of British or Irish nationality then this applies to you. There is no need for a non-resident to change their will if they own Spanish property. In this case, the inheritance laws of their own country automatically apply.
What should you do?
We recommend that if you wish your possessions to be divided between inheritors according to your wishes, then you should make a new Spanish will. The new regulation will not apply until 17th August 2015 so there is plenty of time to do this.
The will should clearly state which succession law you wish to invoke and contain the necessary clause that an inheritance solicitor will be familiar with. In this way, the Spanish notary will have clear directions to follow and the intentions of your will should be followed.
If you have no will at all then Spanish law will also apply. So if making a will in Spain has been something you have been avoiding for a while, now is the time to think again.