It is becoming increasingly common in Spain, and especially on the Costa del Sol, to find foreign citizens who, as a result of spending time in our country, own property in Spain or even become habitual residents.
Globalisation has therefore led to a significant increase in international inheritances, where there is an international element, such as the deceased residing or owning property in a state other than the state of origin.
Given the different inheritance laws in different countries, it is highly advisable to consult a specialist in this field in order to be able to plan in advance both the destination of the assets and the law applicable to the inheritance. Otherwise, the outcome of the inheritance may vary considerably and differ from what would have been the will of the deceased.
In international successions in which the European Regulation – applicable in Spain and in force since 17 August 2015 – is applicable, the law applicable to the succession will depend on whether there was an express choice of law by the deceased in they will:
- What happens when the deceased did not make an express choice?
In this case, the law governing the succession in the absence of choice of the deceased is the law of the State of the habitual residence of the deceased at the time of death, unless there is a state with a closer connection.
- What options does a person have if they want to expressly choose the law applicable to the succession?
The testator has the right to choose whether the law applicable to his succession shall be the law of his nationality at the time of his choice or the law of his nationality at the time of his death.
Let us imagine a case in which a German citizen, habitually resident in Spain, dies without making a will. In this case, the law applicable to his succession would be Spanish law, as it is the law of his habitual residence. However, if he had made a will, the law of his nationality, i.e. German law, could have been applicable to the succession of the German citizen.
What happens when we are dealing with countries that have not adopted the European Inheritance Regulation or that are non-EU countries?
This is the case for Ireland and Denmark which have not adopted the Regulation and are considered third countries in the same way as non-EU countries. However, the rules of the Regulation are universal. This means that they apply not only to nationals of EU Member States but also to nationals of any other country in the world, provided that they have a connection with a country to which the Regulation applies.
Therefore, for example, if a British citizen dies and resides in Spain, the European Inheritance Regulation will also apply.
On the other hand, the Regulation also foresees certain casuistry on the law that will be applicable to those deaths that have taken place until 16 August 2015 – the date of entry into force of the Regulation – and it is therefore highly advisable to obtain correct advice given the complexity of inheritance matters.
At Franke & de la Fuente we are experts in international successions. Please do not hesitate to contact us for a consultation to find out which law would be applicable to your succession and the possibility of making an express choice of law.
