Owning property in Spain introduces a layer of succession law complexity that an English Will alone may not address. The difficulty is not that the Will is deficient. It is that a Will which works perfectly well under English law can produce outcomes in Spain that bear no relation to what the testator intended, because the two legal systems approach the fundamental question of who inherits very differently.
The gaps that can open between the two systems are among the more consequential issues in cross-border private client planning, precisely because they tend to emerge not during the testator’s lifetime but at the point when the family is least equipped to deal with them.
Forced heirship and testamentary freedom
English law is founded on the principle of testamentary freedom, allowing a testator — subject only to limited statutory provisions — to dispose of their estate as they see fit. Spanish law takes a fundamentally different approach, reserving fixed portions of an estate for close family members by law, regardless of the terms of any Will.
Whether Spanish forced heirship rules actually apply to a UK national owning property in Spain depends on where that person was habitually resident at the time of death. Under EU Regulation 650/2012 (Brussels IV), which governs all deaths after 17 August 2015 and continues to bind Spanish courts regardless of Brexit, the default rule is that the law of the deceased’s habitual residence governs the entire succession. A UK national who owned a Spanish property purely as a holiday home, and who was genuinely based in the United Kingdom, will therefore have their estate governed by English law — and Spanish forced heirship will not apply. The position changes significantly for those who had retired to Spain permanently or spent enough time there that habitual residence in Spain could be established. In that event, Spanish succession law governs the whole estate, wherever the assets are situated.
Where Spanish law does apply, the consequences are material. Children have automatic rights over two-thirds of the estate: one third must pass to them equally regardless of the testator’s wishes, and a further third must also pass to them, with only limited flexibility as to distribution between them. Only the remaining third can be freely disposed of. A Will leaving everything to a surviving spouse — entirely valid under English law — does not override these entitlements. The result can be fragmented ownership, family disputes, and outcomes that bear no resemblance to the testator’s intentions.
It should also be noted that Spain’s regional succession regimes, particularly in Catalonia and the Basque Country, differ materially from the national Civil Code, so the location of the property adds a further layer of complexity. For any UK national who spends significant time in Spain, the habitual residence question and its succession consequences deserve specialist advice well before they become a problem for the family to resolve.
The Brussels IV election
EU Regulation 650/2012, known as Brussels IV, has since 2015 given individuals a mechanism for addressing this kind of conflict. It allows a person to elect for the law of their nationality to govern their estate, rather than the law of the country where they are habitually resident at the time of death. For a British national with property in Spain, electing English law has the effect of disapplying Spanish forced heirship and allowing the estate to be distributed in accordance with English law principles. It is important to be clear that Brussels IV governs succession law rather than tax or the practical administration of the estate; those remain subject to their own rules and require separate consideration.
The UK opted out of Brussels IV as a matter of its own domestic law, but the regulation continues to apply in Spain, and British nationals can still make use of it. That position has not changed following Brexit. What has always been true, and is sometimes overlooked, is that the election must be made expressly. It requires a Spanish notarial Will containing an unambiguous declaration electing English law as the governing succession law. Without that declaration, the default rules apply.
An English Will does not contain this election. It is not a Spanish notarial document and cannot stand in place of one. Recent guidance from Spain’s Directorate-General for Legal Security and Public Faith has confirmed that English law can, in some circumstances, be recognised as governing a Spanish estate through an implied rather than express choice of law. An implied election is, however, inherently more vulnerable to challenge. It relies on interpretation by Spanish authorities at the point of probate, introduces uncertainty at precisely the stage when clarity matters most, and the outcome will depend on the specific facts of each case. Where an express statement is available and achievable, relying on implication is a risk that considered planning should not need to accept.
Inheritance tax across borders
A Will structured with UK inheritance tax in mind may not account for the Spanish tax exposure that arises alongside it, and the interaction between the two regimes is where the risk often lies. Spanish inheritance tax operates differently from its UK equivalent in two important respects. First, the tax falls on the beneficiaries rather than on the estate. Second, rates and allowances vary considerably between Spain’s seventeen autonomous communities. In several of the regions most popular with UK property owners, including Andalucia, Madrid, the Balearic Islands and the Canary Islands, reforms over recent years have introduced significant reductions for close family members, and in practice a spouse or child inheriting in these regions may face a minimal liability. In other regions, the position is less generous.
Where the property is located therefore matters, as does the relationship between the deceased and the beneficiaries. Unmarried partners, stepchildren and more distant relatives face a materially different position from spouses and direct descendants. Following a Spanish Supreme Court ruling in 2019, UK nationals can access regional tax allowances on the same basis as EU residents, so Brexit has not fundamentally altered the tax calculation for most families.
There is, however, a further dimension for those who have lived in Spain. UK domicile can persist for up to ten years after leaving the country, keeping worldwide assets within the scope of UK inheritance tax while Spanish obligations also arise on the same Spanish property. Spain does provide a credit for tax paid in the UK, so outright double taxation is not the norm, but the interaction between two separate regimes requires careful analysis that a Will drafted with only one of them in mind is unlikely to address.
Administering the estate
Even where the succession law position is resolved in the testator’s favour, administering a Spanish estate without a Spanish Will involves considerably more complexity than it needs to. Spanish notaries and land registry officials work within a Spanish legal framework. Foreign documents require authentication, translation and formal recognition before they can be acted upon in Spain, and the process of applying an English grant of probate to Spanish property takes time and adds cost. For families managing a bereavement across two countries, that additional burden is significant.
A Spanish Will executed before a notary changes this substantially. It is registered on Spain’s central register of last wills and is immediately accessible to Spanish professionals after death, allowing the administration to proceed without the delays that foreign document recognition otherwise involves. Where a Spanish Will is in place and properly coordinated with its English counterpart, the administration of the estate across both jurisdictions becomes considerably more straightforward for everyone involved.
Coordinating two Wills
Having a Spanish Will and an English Will is not, in itself, sufficient. The two documents need to function as a single coordinated structure, each drafted in full knowledge of the other. One of the most common and damaging traps in cross-border planning is the revocation clause. The standard wording in most English Wills revokes all previous testamentary dispositions, and if an English Will is made or updated without regard to an existing Spanish Will, it can unintentionally revoke it entirely. The consequences of that error may not become apparent until after death, when they are very difficult to remedy.
The Spanish Will similarly needs to be carefully scoped so that it applies to Spanish assets only, without inadvertently affecting the English Will’s coverage of everything else. How the Spanish property is held is also relevant. Joint ownership between spouses operates differently under Spanish law than under English law, and the ownership structure may affect what is achievable on death. Lifetime planning options, including gifting arrangements that in some regions carry the same generous tax reductions as inheritance, may also form part of a well-considered strategy.
Family structures warrant particular care. Blended families, unmarried partners and those with children from previous relationships face specific risks in a cross-border context, where the interaction between Spanish forced heirship, the scope of any English law election and the terms of the Will itself all have to be considered together. Imprecision in any one of those areas can have lasting consequences for the people left to deal with it.
As a general rule, unmarried and unregistered partners do not have automatic inheritance rights over their deceased partner’s estate. While certain autonomous communities provide for exceptions to this principle, in practice such relationships rarely benefit from specific legal protection, even where the couple have cohabited for many years.
Taking action
For those with property in Spain, the practical questions are whether a valid Spanish Will is in place, whether it includes an express election under Brussels IV, and whether the Spanish and English Wills have been drafted to work together as a coherent whole. Where estate planning was put in place before 2015, when Brussels IV came into force, or has not been reviewed since the property was acquired or family circumstances changed, the risk is that it reflects neither the current law nor the current position.
Cross-border succession planning sits at the intersection of two legal systems, each capable of producing outcomes the testator did not intend if the other has not been taken into account. The goal is not just the right legal outcome but the certainty and practical simplicity that properly coordinated planning provides for a family at a difficult time. Those things are achievable, but they require specialist advice that spans both systems rather than treating each in isolation.
The private client team at Buckles advises clients with assets across multiple jurisdictions, including Spain, on Will structures that are properly coordinated, legally sound under the laws of each relevant country, and genuinely reflective of what the client intends.
