To ensure our loved ones get everything we want them to have after we pass away, we create a will. After we pass away, things should proceed well for our family because our assets are divided according to our wishes. But in Spain, things can be different when it comes to assets. To learn everything there is to know about Spanish force inheritance and heirship, continue reading.
If you’re unsure how to ensure your wishes are respected under Spanish law, our Spanish Wills service can help you draft a valid will that aligns with both UK and Spanish succession rules
What is the Forced Heirship Rule in Spain?
In Spain, a deceased person’s children or next of kin must receive a portion of their assets under forced heirship. The mandatory share is indeed 2/3 (two-thirds) of the assets for descendants (children). One-third must be divided equally among all children (legítima estricta), and the remaining one-third must be used to benefit the children or descendants but can be unequally distributed (tercio de mejora). Only the final one-third (tercio de libre disposición) can be allocated freely in a will.
UK nationals with assets in Spain may be caught off guard, as forced heirship does not apply in England or Wales. For British citizens who have made a will in England but now reside in Spain and own property there, the differences between Spanish and English probate law have caused problems and will continue to do so. However, it can be prevented. For official guidance on how to make a will in the UK, visit GOV.UK to understand your legal options before dealing with overseas assets.
Avoiding Spanish Forced Heirship: The Brussels IV Election
UK nationals with assets in Spain may be caught off guard, as forced heirship does not apply in England or Wales, and the differences in probate law have historically caused problems for British citizens. However, since August 2015, the EU Succession Regulation, known as Brussels IV provides a powerful solution. This regulation allows you to formally elect in your will for the law of your nationality to govern the succession of your Spanish assets. By including this “choice of law” election in a Spanish will, you can preserve your testamentary freedom and entirely avoid the Spanish forced heirship rules.
In Conclusion
Spanish forced heirship rules will apply by default if the deceased was habitually resident in Spain at the time of their death and did not make an explicit choice of law. If you were resident in Spain (either permanently or semi-permanently) and failed to include a Brussels IV clause electing for UK law, Spanish succession law will govern your estate and impose forced heirship.
It is therefore crucial to ensure your Spanish will explicitly reflect your preference for UK succession law to apply, especially before making a permanent move to Spain or investing in real estate there.
It’s also worth reviewing the UK’s Inheritance Tax rules to understand how your estate may be affected when you own assets in Spain and the UK.
For help with Spanish probate issues, contact Spanish Probate Matters on 0208 150 2010.
