Testament and death of a Brit in Spain: what you should know

The existing legislation between Spain and Britain regarding inheritance is complex, mainly because their legal traditions are opposed. While in the UK there is absolute freedom in regards to how the inheritance may be distributed, in Spain by law there is a system which reserves a portion of the inheritance to the so-called “legitimate heirs”, which is an obstacle to that freedom.

Since the entry in force of European Regulation 650/2012 last August 17, 2015, the law stipulates that when a foreigner dies in European territory without a will, or, existing a will, the submission to its national law is not stated expressly, the law of the State in which the deceased resides is the law that applies.

In this respect last June the Spanish Directorate General of Registries and Notaries resolved a case in a particular way. The deceased, in his will signed in 2004, had given all his goods to his wife, following British law, his national law. This provision collided with the Spanish inheritance law, by which the wife should only receive the usufruct of a third of the goods, reserving the remaining two thirds for other “legitimate heirs”.

At this point the Registrar understood that Regulation 650/2012 applied, meaning that in the absence of “express submission” of the will to the law of nationality, the law of the country of residence, in this case Spain, was the applicable law.

However, representatives of the wife argued that Britain did not recognize this European regulation, forgetting that Article 20 of such regulation establishes the “universality of applicable law.” Thus although even if Britain does not recognize this regulation, it is of application for Brits who have their goods and reside in Europe.

Finally, however, the Directorate General of Registries and Notaries ended up giving in to the wife of the British citizen, who inherited all the assets of the will, mainly due to the fact that the law of succession, when making the will in 2003, was English law.

Given that the resolution of this case is exceptional, to safeguard a setback such as this one, from Del Canto Chambers we strongly advise British residents in Spain to:

– Open an appointment for a revision of the will, in order to be advised of the convenience of being subject to one or other law (Spanish or British) according to your personal situation.

– In the event that finally you choose your national law (UK), urgently make the necessary legal arrangements; it is a simple process.

This advice applies equally to British residents who are currently without a will, because in case of death intestate (without a will) Article 21.1 of the Regulations shall apply, and your goods and heirs will be subject to Spanish law.

If you have questions about your investments, savings or assets, please feel free to contact us and we will advise you at clerk@delcantochambers.com

Raul del Canto (@rauldcanto)

Lawyer in Del Canto Chambers

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