In recent months numerous people have contacted us concerned about the new regulations on cross-border successions, proposed by the European Commission which will come in to force in Spain from August 17th 2015.
This new regulation is going to be introduced with the intention of simplifying the situation regarding inheritance law where more than one European country is involved.
Which law is to be applied in Spanish Inheritance Law?
However, in this new European regulation, it states that the Inheritance Law of the country in which the testator was habitually resident at the time of death should, in general, be applied.
There are two exceptions to this new law:
If, exceptionally, it can be proven that the deceased had kept a manifestly closer connection with a country other than the country where they had their last habitual residence, the inheritance law of that other country would be applicable.
The new regulation also allows a person to choose which inheritance law should be applied at the time of death. This can be done by expressly specifying their choice in writing beforehand, for example in their will
The most salient point of this new regulation is, as a general rule the inheritance of a foreign resident deceasing in Spain would be governed by Spanish Law, unless otherwise specifically expressed beforehand in any public document such as a will. Therefore, it is important to realise that one of the things that the Spanish law regarding inheritance specifies, is that there is no freedom of choice regarding who would inherit. According to Spanish law the children of the deceased have the legal right to inherit at least 2/3 of the assets, and this is their right even before the spouse or any other proposed heir of the deceased is considered.
Hence the importance of stating clearly in writing, i.e. in a will, which regime you wish to govern your estate.
Another important point regarding the new regulation is that it states that the courts of the Member Country in which the deceased had their habitual residence at the time of death, has jurisdiction to rule on the entire estate, unless the heirs agree otherwise. If this were the case, the heirs may agree that a court of the Member Country of the deceased`s nationality have exclusive jurisdiction to substantiate any conditions in matters of succession.
If you have not made a will or have a will that does not comply with the Spanish Inheritance Law, and is written according to the inheritance law of the nationality of the testator, it is imperative that you ensure that it specifically mentions which inheritance law should be applied.
If a will does not specify this, and you do not want it to be governed by the Spanish Inheritance Law, then we would recommend that you consider making a new will to avoid future problems.
Therefore, we suggest, to avoid any possibility of doubt, expert advice should be sought. We at Manilva Solicitors, with over 10 years of experience on the coast dealing with this and other legal matters would be happy to help you to plan ahead.
Senior Partner Manilva Office
*A REMINDER FOR RESIDENTS IN SPAIN – DON’T FORGET YOUR TAX DECLARATION FOR 2014 MUST BE SUBMITTED BY 31ST JUNE 2015*