Which Law Applies to an International Inheritance with Assets in Spain?

A person may hold German nationality, live in Spain and keep assets in several countries. When they die, which law determines who inherits and how those assets are distributed?

The location of a home in Spain does not, by itself, mean that its succession is governed by Spanish law. Nor is it enough to know the owner’s nationality.

At MH Legal & Seguros we explain the main criteria and what to review before preparing a will or dealing with an international inheritance.

Habitual residence: the starting point

In successions subject to the European Succession Regulation, the general rule refers to the law of the State where the deceased had their habitual residence at the time of death.

Exceptionally, the law of another State may apply if the circumstances show a manifestly closer connection with it. This exception does not replace the assessment of habitual residence where establishing it is difficult.

It is therefore worth reconstructing where and how the person actually lived, especially where they divided their time between countries.

Is habitual residence the same as holding an NIE or being registered as a resident?

It should not be identified automatically with a single administrative document, nor with a simple count of days.

The assessment considers the circumstances of the deceased’s life: the length and regularity of their presence, the reasons for their stays and their family and social ties.

To prepare the file, it is useful to gather information on housing, family, activity and travel, in addition to the certificates available.

Can you choose the law of your nationality?

The Regulation allows you to choose the law of a nationality you hold when making the choice or at the time of death. If you hold several nationalities, any of them may be chosen within the terms provided.

The choice must be made in a disposition mortis causa, either expressly or as resulting from its terms. It does not allow any legislation to be picked because it is considered more favourable.

Before adding a clause to a will, it is worth studying its effects for the beneficiaries and how it fits with the documents that already exist.

What the succession law determines

The applicable law governs matters such as:

• Who the beneficiaries are and what their rights are.
• Which parts of the estate may be reserved for certain relatives.
• Liability for debts.
• The powers of administrators and executors.
• The distribution of the inheritance.

It is therefore unwise to apply Spanish rules on forced heirship shares (legítimas) or spousal rights directly without first establishing the applicable law.

Does a different law apply to the assets in each country?

The Regulation starts from the principle that one and the same law governs the succession as a whole. It does not allow the choice of law to be divided freely according to where each asset is located.

Files connected with third States may, however, require additional analysis, including the possible renvoi provided for in the rules.

In practice, it is worth drawing up a complete list of the assets and of the countries involved, even where only a Spanish property is to be dealt with initially.

Succession law, taxes and matrimonial property: separate questions

Choosing a law for the inheritance does not automatically determine its taxes.

Taxation and the matrimonial property regime fall outside the scope of the Succession Regulation. They must be reviewed under their own rules.

This requires distinguishing:

• Which assets belonged to the deceased.
• How their estate is transmitted.
• Which tax obligations apply.
• Which documentation is needed to formalise and register the acquisition.

A will clause does not resolve all these questions on its own.

What happens with countries that do not take part in the Regulation

Denmark and Ireland do not take part in the European Succession Regulation. Even so, their nationals may benefit from its rules where the succession is dealt with in a participating State, under the applicable conditions.

The choice may be treated differently before authorities in non-participating countries. Planning therefore needs to be coordinated where several legal systems are involved.

What to prepare to review your case

Before drafting a will or starting an adjudication, gather:

• Nationalities and residence details.
• Family and matrimonial information.
• Wills and other succession documents.
• A list of assets and debts by country.
• Foreign documents already issued.
• Your planning objectives or the formalities still pending.

This information makes it possible to identify which decisions require advice and which professionals should be involved.

Frequently asked questions about the law applicable to an international inheritance

Does signing a will in Spain mean choosing Spanish law?

Not in itself. Its content and the criteria that determine the applicable law must be reviewed.

Does holding a foreign nationality always exclude Spanish law?

No. Nationality must be analysed together with habitual residence and the existence of a valid choice of law.

Can I choose a different law for each property?

That is not what the Regulation’s choice of law allows: it concerns the succession as a whole.

Does choosing the law of my nationality remove Spanish taxes?

No. The succession law and taxation must be examined separately.

Review the applicable law before organising your inheritance

Establishing the succession law allows decisions to be prepared on a clear basis and avoids mistaken expectations about how the assets will be distributed.

At MH Legal & Seguros we advise international clients on inheritances and wills involving assets in Spain. We review their circumstances and coordinate the file with the notary and, where necessary, with professionals in other countries.

Contact our team to review your planning or your international inheritance.