Cross-border inheritance in Spain

Habitual residence, not nationality

This is the point that surprises people. A British national who spent the last fifteen years living in Alicante is, for succession purposes, generally governed by Spanish law — not English law — unless they said otherwise in a will.

And the reverse: a British national living in Manchester who owns a flat in Málaga will generally have English law govern the succession of that flat too, because the Regulation applies one law to the entire estate rather than splitting it by asset location.

Habitual residence is a factual question, not a formal one. It looks at where the person actually lived, their family and social ties, the duration and regularity of their presence. Someone splitting the year between two countries can be a genuinely difficult case.

Why the difference matters so much

Spanish law reserves fixed shares of the estate for certain relatives — the legítima. Descendants are entitled to a protected portion that the deceased cannot freely dispose of. English law, by contrast, allows broad testamentary freedom.

So the same will can produce completely different outcomes depending on which law applies. A person who left everything to their spouse may find that children have an enforceable claim, or may not, purely as a function of where they were habitually resident when they died.

In Spain the position is more complicated still, because several regions — Catalonia, the Basque Country, Navarre, Aragon, the Balearics and Galicia — have their own civil law with different rules on reserved shares.

Choosing the law in a will

The Regulation allows a person to choose the law of their nationality to govern their succession, and that choice overrides the habitual residence rule. It has to be made expressly, and the usual place is a will.

For anyone with assets or life in two countries, making that choice deliberately is the single most useful thing they can do. Not making it leaves the outcome to a factual assessment carried out after they are no longer there to explain it.

After Brexit

The United Kingdom never participated in the Regulation, along with Ireland and Denmark. That does not stop the Regulation applying in Spain to an estate involving British nationals: Spain applies it universally, whether or not the law it points to is that of a participating state.

What Brexit did change is the practical side — documents, apostilles, and the fact that a European Certificate of Succession issued in Spain has no automatic effect in the UK.

The European Certificate of Succession

Where the estate spans several EU member states, this certificate proves who the heirs are and what powers they hold, and is recognised across participating states without further formality. It is issued by a notary in Spain where the Spanish authorities have jurisdiction.

It is useful where there are assets in more than one participating country. It is not a substitute for the deed of acceptance, and it does nothing for assets in the UK.

What this means in practice

Before anything else in a cross-border estate, establish three things: where the deceased was habitually resident, whether any will contains a choice of law, and which Spanish regional law applies if Spanish law governs.

Getting these wrong does not produce a delay. It produces a deed signed by the wrong people, which is considerably more expensive to unwind than to get right.

Related: Spanish probate for non-residents · Spanish inheritance service · Paying inheritance tax from abroad