Spanish Wills and the EU Succession Regulation: Which Law Governs Your Estate
The most expensive mistake a foreign owner on the Costa Blanca can make costs nothing to avoid: dying with a villa in Torrevieja and a will drafted at home that collides with Spanish forced heirship. Since 17 August 2015 the law that governs your estate is decided by Regulation (EU) 650/2012, and its default rule is not your nationality — it is the State where you were habitually resident when you died. If that State is Spain and you never said otherwise in a will, Spanish law applies to the whole estate, and Spanish law reserves two thirds of it for your children. The Regulation also gives you the cure, in one clause: you may choose the law of your nationality, expressly, in a disposition of property upon death. This guide explains the connecting factors, the choice of law and how to word it, what the Spanish legítima actually reserves, the widowed spouse usufruct, the European Certificate of Succession, how a Spanish will is signed before a notary, the cross-revocation trap between two wills, what happens on intestacy, and why none of this changes the Spanish inheritance tax bill.
Quick answer
Regulation (EU) 650/2012 applies the law of the State where you were habitually resident at the time of death (art. 21.1), unless you expressly chose the law of your nationality in a will (art. 22). That choice decides forced heirship, never tax: Spanish inheritance tax is still due on the Spanish property.
Reviewed by
Valery Grinkevich
Licensed economist · tax adviser · 20+ years of experience · Torrevieja, Costa Blanca
Key takeaways
- The default is habitual residence, not nationality: the law of the State where the deceased was habitually resident at the time of death governs the succession as a whole (art. 21.1 of Regulation (EU) 650/2012), and it applies even when it is not the law of a Member State (art. 20).
- You can override the default only one way: by choosing the law of a State whose nationality you hold, expressly, in a disposition of property upon death (art. 22.1 and 22.2). There is no option to choose the law of the country where the property is.
- Spanish forced heirship reserves two thirds of the estate for children and descendants — one third strict, one third of mejora — leaving one third freely disposable (art. 808 CC), plus the surviving spouse usufruct of the third of mejora (art. 834 CC).
- The Regulation does not apply to revenue matters (art. 1.1). Spanish inheritance tax is charged on assets situated in Spain whatever law governs the succession (art. 7 LISD), and the return is due within six months of the death (art. 67.1.a of the ISD Regulation).
- Two wills can kill each other: a later will revokes an earlier one by operation of law unless it says the earlier one survives (art. 739 CC). The Spanish will must be limited to Spanish assets and say so, and the home-country will must carry the mirror clause.
On this page
- The rule that decides everything: Regulation (EU) 650/2012
- Habitual residence: the default that catches most owners
- Professio iuris: choosing the law of your nationality (art. 22)
- What the applicable law governs — and what it never touches: tax
- Spanish forced heirship: what the legítima actually reserves
- The widowed spouse: usufruct, not ownership
- Why an English will leaving everything to the spouse collides
- The European Certificate of Succession (arts. 62 to 69)
- How a Spanish will is made: the testamento abierto
- The Spanish-assets-only will and the cross-revocation trap
- Dying without a will: intestacy handled from abroad
- The Valencia Region: the Civil Code governs, the tax rules are regional
- Your checklist if you already own property in Spain
- How to put a Spanish will in place, step by step
- Frequently asked questions
The rule that decides everything: Regulation (EU) 650/2012
Regulation (EU) 650/2012 has applied since 17 August 2015 (art. 84) to the succession of persons who die on or after that date (art. 83.1). Before it, a Spanish notary asked for the nationality of the deceased and applied the national law under art. 9.8 of the Civil Code. Since then the question is different: where was the deceased habitually resident when they died? The law of that State governs the succession as a whole (art. 21.1) — movables and immovables, wherever they are — unless the deceased chose otherwise.
The Regulation is of universal application: the law it designates applies whether or not it is the law of a Member State (art. 20). That single sentence is why a notary in Alicante can end up applying the law of England and Wales, of Norway or of a third country to a Spanish estate, and why the fact that Ireland and Denmark do not participate in the Regulation (recitals 82 and 83) does not put their nationals outside it. The United Kingdom likewise opted out under Protocol No 21 and has since left the Union altogether; neither fact prevents a Spanish authority from applying English law when the Regulation points there, because art. 20 does not require reciprocity. What it does mean is that the machinery which only works between participating Member States — above all the European Certificate of Succession — is unavailable in Dublin, Copenhagen or London.
What the Regulation is not is a tax instrument. Art. 1.1 says it applies to succession to the estates of deceased persons and that it does not apply to revenue, customs or administrative matters. It also excludes matrimonial property regimes (art. 1.2.d), which are settled before the estate is: you can only leave what remains yours once the marital regime has been liquidated. Almost every misunderstanding a foreign owner arrives with is a version of one of these two exclusions.
Habitual residence: the default that catches most owners
Habitual residence is not defined in the articles; recital 23 tells the authority dealing with the succession how to find it. It must carry out an overall assessment of the circumstances of the life of the deceased during the years preceding the death and at the time of the death, taking account of all relevant facts, in particular the duration and regularity of the presence in the State concerned and the conditions and reasons for that presence. The habitual residence so determined should reveal a close and stable link with that State. It is a factual test, not a form you file.
Recital 24 describes the hard cases directly. Someone who moved abroad for professional or economic reasons, sometimes for a long period, but kept a close and stable link with their State of origin may still be habitually resident there, where the centre of their family and social life lay. Someone who lived alternately in several States, or travelled between them without residing permanently in any, is harder still; if they were a national of one of those States, or held their main assets there, nationality or the location of the assets can weigh as a special factor in the overall assessment. A snowbird with a flat in Jávea, an address in Rotterdam and eight months a year in Spain is exactly the profile the recital has in mind.
Art. 21.2 adds an escape clause: exceptionally, where it is clear from all the circumstances that at the time of death the deceased was manifestly more closely connected with a State other than the State of habitual residence, the law of that other State applies. Recital 25 gives the paradigm — someone who moved to the State of habitual residence shortly before dying — and warns that the manifestly closer connection is not to be used as a subsidiary rule whenever determining habitual residence is merely difficult. In practice it is rare, it is decided after your death by someone who never met you, and it is the reason to settle the question yourself while you can.
Watch out
Habitual residence under the Regulation is not the 183-day tax residence test. You can be a Spanish tax resident and habitually resident abroad, or the reverse. The two questions are answered by different rules for different purposes, and answering one tells you nothing about the other.
Professio iuris: choosing the law of your nationality (art. 22)
Art. 22.1 gives you one choice and only one: you may designate the law of the State whose nationality you possess at the time of making the choice or at the time of death. A person holding several nationalities may choose the law of any of those States, on the same two dates. There is no option to choose the law of the place where the property sits, of the place where you live, or of the place you would prefer — a clause choosing the law of Spain because the flat is in Spain is not a valid professio iuris unless you are a Spanish national.
The form is strict. The choice must be made expressly in a declaration in the form of a disposition of property upon death, or be demonstrated by the terms of such a disposition (art. 22.2). In practice that means a clause in a will, and in practice it means a clause the Spanish notary can read: naming the chosen law in one sentence removes the entire argument. The substantive validity of the act by which the choice is made is governed by the chosen law (art. 22.3), and any modification or revocation of the choice must meet the formal requirements for modifying or revoking a disposition of property upon death (art. 22.4). Art. 24 applies the same logic to the admissibility and substantive validity of the will itself.
One drafting trap deserves its own line. Where the chosen national law belongs to a State with more than one territorial legal system — the United Kingdom, with England and Wales, Scotland and Northern Ireland, and Spain itself, with the Civil Code and the foral regimes — the internal conflict rules of that State determine which unit applies, and in their absence the reference is to the law of the unit with which the deceased had the closest connection (art. 36.1 and 36.2.b). Write the law of England and Wales, not British law. Finally, art. 83.4 rescues many older wills: a disposition of property upon death made before 17 August 2015 in accordance with a law which the deceased could have chosen under the Regulation is deemed to be a choice of that law.
What the applicable law governs — and what it never touches: tax
The law designated under arts. 21 or 22 governs the succession as a whole (art. 23.1). Art. 23.2 lists what that means in particular: the causes, time and place of the opening of the succession; the determination of the beneficiaries, their respective shares and the obligations imposed on them, including the succession rights of the surviving spouse or partner; capacity to inherit; disinheritance and disqualification by conduct; the transfer of assets and rights to the heirs and legatees, including the conditions and effects of acceptance or waiver; the powers of the heirs, executors and administrators; liability for the debts of the estate; the disposable part, the reserved shares and other restrictions on the disposal of property upon death; the obligation to account for gifts and advances; and the sharing-out of the estate. Forced heirship is squarely inside the Regulation, at art. 23.2.h. That is the whole game.
Tax is squarely outside it. Art. 1.1 excludes revenue matters, and Spanish inheritance tax follows its own connecting factors: a taxpayer resident in Spain is taxed on the whole acquisition wherever the assets lie (art. 6 LISD), and a taxpayer who is not is taxed by obligación real on the acquisition of assets and rights of whatever nature situated in, exercisable in or to be performed in Spanish territory (art. 7 LISD). A flat in Orihuela Costa is situated in Spain on any reading. Choosing English law changes who inherits it; it does not change who taxes it, at what rate, or by when — six months from the death, extendable by an equal period if the extension is applied for within the first five months (arts. 67.1.a and 68 of the ISD Regulation).
The two systems can point in different directions at once, and that is normal rather than contradictory. Where the deceased was not resident in Spain, the heirs are entitled to apply the rules approved by the Autonomous Community in which the greatest value of the Spanish estate is situated (second additional provision, One.1.a, of the Inheritance and Gift Tax Act). For a Costa Blanca property that is the Comunitat Valenciana. So an English couple can have their succession governed by the law of England and Wales, their Spanish property pass exactly as their English will says, and their heirs still file a Spanish inheritance tax return under Valencian rules within six months. Our inheritance tax guide for the Valencia region covers that side of the file.
Watch out
Choosing your national law does not reduce, defer or remove Spanish inheritance tax on the Spanish property. Anyone who tells you a professio iuris clause is a tax plan is describing something the Regulation expressly excludes from its own scope (art. 1.1).
Spanish forced heirship: what the legítima actually reserves
The legítima is the portion of the estate the testator cannot dispose of, because the law has reserved it for certain heirs, called for that reason forced heirs (art. 806 CC). The forced heirs are, in order: children and descendants in respect of their parents and ascendants; failing them, parents and ascendants in respect of their children and descendants; and the widowed spouse in the form and measure the Code establishes (art. 807 CC). Note what is not on that list: unmarried partners, stepchildren and siblings are not forced heirs under the Civil Code.
The arithmetic is in art. 808. Two thirds of the estate constitute the legítima of children and descendants. Of those two thirds, the parent may apply one as mejora among children or descendants — improving one child over the others — and the remaining third is freely disposable. So in the classic family case the testator controls one third outright, may steer a second third among the children, and cannot touch the last third at all. Where there are no descendants but there are parents or ascendants, their legítima is one half of the estate, reduced to one third when they concur with the surviving spouse of the deceased descendant (art. 809 CC).
The reserve is protected by machinery, not just by principle. The testator may not deprive forced heirs of the legítima except in the cases expressly determined by law, and may not impose on it any charge, condition or substitution, beyond what is provided for the widow usufruct and in arts. 782 and 808 (art. 813 CC). A forced heir left less than their share may claim the shortfall (art. 815 CC), testamentary dispositions that reduce the legítima are cut down at their request insofar as they are inofficious or excessive (art. 817 CC), and the legítima is computed on the value of the assets remaining at the death of the testator, less debts and charges, with collationable gifts added back (art. 818 CC). Any waiver or transaction over a future legítima between the person who owes it and the forced heirs is void (art. 816 CC).
The widowed spouse: usufruct, not ownership
A spouse who at the death of the other was not legally or de facto separated, and who concurs with children or descendants, is entitled to the usufruct of the third destined to mejora (art. 834 CC). That is a right of enjoyment over a third of the estate, not ownership of it: the bare ownership belongs to the descendants. Where the spouses had separated and there was a reconciliation notified to the court that heard the separation or to the notary who executed the deed of separation under art. 84 CC, the survivor keeps their rights (art. 835 CC).
The share changes with the family. Where there are no descendants but there are ascendants, the surviving spouse is entitled to the usufruct of one half of the estate (art. 837 CC); where there are neither descendants nor ascendants, to the usufruct of two thirds (art. 838 CC). This is the point where a will drafted at home most often surprises the family: a clause leaving everything to the spouse in full ownership is not what the Civil Code produces if Spanish law ends up governing the succession, and a clause leaving the spouse a life interest may be more, or less, than the Code gives.
The usufruct can be converted, which is what makes an estate saleable again. The heirs may satisfy the spouse share of usufruct by assigning a life annuity, the products of certain assets, or a capital sum in cash, acting by mutual agreement or, failing that, by court order; until they do, all the assets of the estate answer for the payment of the usufruct that corresponds to the spouse (art. 839 CC). Where the surviving spouse concurs with children of the deceased alone, the spouse may require that the usufruct be satisfied, at the election of the children, by a capital sum in money or a lot of the estate assets (art. 840 CC). Our guide to usufruct and bare ownership in Spain covers how the split is valued and what each side can and cannot do.
Why an English will leaving everything to the spouse collides
Take the case an adviser on the Costa Blanca sees most. A British couple retire to Torrevieja, buy the villa in joint names, spend the year there and keep mirror wills signed years earlier at a solicitor at home, each leaving the entire estate to the survivor and then to the children. Neither will says a word about which law governs the succession. One of them dies. Because habitual residence at the time of death was Spain and no choice of law was ever made, art. 21.1 sends the whole succession to Spanish law, and Spanish law includes arts. 806 to 808 of the Civil Code.
The children are now forced heirs of two thirds of the estate, and the will gives them nothing until the second death. Each of them may claim the shortfall in their legítima (art. 815 CC) and have the excessive dispositions reduced (art. 817 CC). Art. 814 CC handles the case where forced heirs are simply left out: unintentional preterition of all the children annuls the testamentary dispositions of a patrimonial nature; otherwise it annuls the institution of heir while preserving legacies and mejoras insofar as they are not inofficious, with the institution of heir in favour of the spouse annulled only insofar as it prejudices the legítimas. None of this happens automatically in a courtroom; it happens at a notary desk, where the deed of acceptance cannot be signed, and at the Land Registry, where the transfer cannot be recorded.
The cost is not the legal argument, it is the time. While the family negotiates, the six-month inheritance tax deadline runs from the date of death (art. 67.1.a of the ISD Regulation), an extension has to be requested within the first five months and carries late-payment interest from the end of the six (art. 68 of the same Regulation), and the property cannot be sold because title has not passed. The cure had to be bought in advance and costs one clause: an express choice of the law of your nationality under art. 22, in a will the Spanish notary can read.
Example
Generic example, no figures. Estate: the Torrevieja villa and a Spanish bank account. Will: everything to the spouse. If Spanish law governs, the two children hold a reserve over two thirds and the spouse takes the free third plus the usufruct of the third of mejora (arts. 808 and 834 CC). If the will had chosen the law of England and Wales under art. 22, the spouse would take the lot and the children would have no reserve at all. Same assets, same family, same notary — different clause.
The European Certificate of Succession (arts. 62 to 69)
The Regulation creates the European Certificate of Succession, issued for use in another Member State and producing the effects listed in art. 69 (art. 62.1). Its use is not mandatory (art. 62.2) and it does not replace the internal documents used in the Member States for similar purposes, although once issued for use in another Member State it also produces the art. 69 effects in the State whose authorities issued it (art. 62.3). It is a tool for cross-border estates, not a replacement for the Spanish deed of acceptance of inheritance.
It exists for heirs, legatees having direct rights in the succession, and executors or administrators who need to invoke their status or exercise their rights in another Member State (art. 63.1), and it may be used in particular as proof of the status and rights of each heir or legatee and their respective shares, of the attribution of specific assets to them, and of the powers of the person named to execute the will or administer the estate (art. 63.2). It is issued in the Member State whose courts have jurisdiction under arts. 4, 7, 10 or 11, either by a court or by another authority which under national law has competence to deal with matters of succession (art. 64) — in Spain, in practice, the notary. The issuing authority issues it without delay, on the standard form, once the elements to be certified have been established under the law applicable to the succession (art. 67.1).
The effects are what make it worth having. The certificate produces its effects in all Member States without any special procedure being required (art. 69.1); it is presumed to prove accurately the elements established under the applicable law, and the person named in it as heir, legatee, executor or administrator is presumed to have that status and to hold the rights or powers stated, with no conditions or restrictions other than those the certificate itself records (art. 69.2). A bank that pays or delivers assets to a person the certificate shows as entitled is treated as having dealt with a person authorised to receive them, unless it knows the contents are inaccurate or is unaware of that through gross negligence (art. 69.3), and the same protection covers someone acquiring assets from a person the certificate shows as entitled to dispose of them (art. 69.4). The certificate is a valid document for recording succession property in the register of a Member State (art. 69.5). One practical limit: certified copies are valid for a limited period of six months, stated on the copy itself, extendable in duly justified exceptional cases (art. 70.3) — so do not obtain one months before the bank actually needs it.
How a Spanish will is made: the testamento abierto
The ordinary Spanish will is the testamento abierto, granted before a notary competent to act in the place of the grant (art. 694 CC). The testator states the last will orally, in writing or by any technical, material or human means; the notary drafts it accordingly, stating the place, year, month, day and hour of the grant; having advised the testator of the right to read it themselves, the notary reads it aloud so the testator can confirm it matches their wishes, and it is signed there and then (art. 695 CC). The notary attests to knowing or having duly identified the testator and records that in their judgement the testator has the legal capacity to make a will (art. 696 CC). Two suitable witnesses attend when the testator declares they cannot or do not know how to sign, or when either the testator or the notary asks for them (art. 697 CC), and all the formalities are carried out in a single act, beginning with the reading, without interruption (art. 699 CC).
Not speaking Spanish is not an obstacle, and the Code says how. Where the testator expresses their wishes in a language the notary does not know, an interpreter chosen by the testator is required, translating the testamentary disposition into the official language of the place that the notary uses; the instrument is written in both languages, stating which one the testator used (art. 684 CC). Where the testator uses a foreign language, the open will is written in that foreign language and in the official language the notary uses, even where the notary knows the former, and the interpreter attends the grant (art. 698.3 CC). What you actually need in front of you is your passport or national identity document, your NIE, the full names and details of the people you are naming, and a clear description of the assets in Spain. Notarial charges follow the tariff approved by Real Decreto 1426/1989 and its general rules of application, so ask the notary for a quotation for the specific document rather than trusting a figure from a forum.
The will does not stay private to your drawer. The notary keeps the original in the protocol and delivers you an authorised copy, and reports the grant to the Registro General de Actos de Última Voluntad through the Dean of the Notarial College, which records the testator details, the notary who authorised the act, and the place, date and class of the disposition (arts. 3, 4, 11, 12 and 13 of Annex II of the Reglamento Notarial). The register is confidential: certificates are issued to the testator themselves, to courts and authorities for official business, and to anyone else only once the death has been evidenced by an authentic document and fifteen days have elapsed since the death (art. 5 of Annex II). That certificate is not optional for the heirs — notaries asked to authorise deeds of adjudication or partition of assets acquired by testate succession must require it, and Registrars of Property suspend the registration as a curable defect if it is not produced with the title deeds (art. 15 of Annex II).
The Spanish-assets-only will and the cross-revocation trap
The standard solution for a foreign owner is a short Spanish will limited to assets situated in Spain, sitting alongside the will made at home. The reasons are practical rather than legal: the original stays in a Spanish notary protocol, the grant is entered in the Registro General de Actos de Última Voluntad so the heirs can find it from the death certificate alone, the notary who later signs the deed of acceptance reads a Spanish document, and nobody has to obtain, translate, apostille and have a foreign grant of probate recognised before a Spanish property can change hands. It is also the natural home for the art. 22 choice of law, because a Spanish notary drafted the clause and knows exactly what it has to say.
The trap is that two wills can destroy each other. Art. 739 CC is blunt: an earlier will is revoked by operation of law by a later perfect will, unless the testator expresses in the later one the wish that the earlier should subsist in whole or in part. Art. 737 CC adds that all testamentary dispositions are essentially revocable even if the testator declares otherwise, and that clauses purporting to bar future revocation are treated as not written; art. 738 CC requires that revocation be made with the formalities needed to make a will. So a Spanish will drafted without care can wipe out the English one, and — more commonly, because it happens later — a new will signed at home with the usual clause revoking all former wills and testamentary dispositions can wipe out the Spanish one, leaving the Spanish property to be dealt with under a document that was never meant to cover it.
The drafting fix is mechanical, and both sides must carry it. The Spanish will states that it disposes only of the assets the testator owns in Spain and that it does not revoke dispositions made over assets outside Spain; the home-country will carries the mirror clause, revoking only previous wills relating to assets outside Spain and expressly preserving the Spanish one. Formal validity is generous and rarely the problem: a written disposition of property upon death is formally valid if it complies with the law of the State where it was made, of the nationality, domicile or habitual residence of the testator at the time of the disposition or at death, or, as regards immovable property, of the State where it is located (art. 27.1 of the Regulation), and the same catalogue applies to dispositions that modify or revoke an earlier one (art. 27.2). The Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, in force for Spain since 10 June 1988 and published in the BOE on 17 August 1988, sets out the same connecting factors in its art. 1 and extends them in its art. 2 to dispositions revoking an earlier testamentary disposition. Form is the easy part; intention is what gets lost.
Watch out
Before signing any new will anywhere in the world, tell the drafter in writing that you hold a Spanish will over your Spanish assets and that it must not be revoked. A standard revocation of all former wills is a printed clause in most home-country precedents, and no one abroad will spot what it destroys.
Dying without a will: intestacy handled from abroad
Intestate succession opens where a person dies without a will, or with a void will or one that has lost its validity; where the will does not institute an heir over all or part of the assets, or does not dispose of all of them, in which case intestacy applies only to the assets not disposed of; where a condition fails, the instituted heir dies before the testator or renounces without a substitute and without accrual; and where the instituted heir is incapable of inheriting (art. 912 CC). In default of testamentary heirs, the law calls the relatives of the deceased, the widow or widower, and the State (art. 913 CC).
The order of calls under the Civil Code is fixed. First the direct descending line: children succeed in their own right, dividing the estate in equal shares, and grandchildren and further descendants by right of representation (arts. 930 to 934 CC). Failing descendants, the ascendants: father and mother in equal shares, the survivor taking the whole if one has died, and beyond them the nearest ascendants in degree, dividing by lines and by heads (arts. 935 to 941 CC). Failing both, the surviving spouse succeeds in all the assets of the deceased, before the collaterals (art. 944 CC) — but not where the spouse was separated legally or de facto (art. 945 CC). Then siblings and children of siblings, in preference to the remaining collaterals (art. 946 CC). Note the gap this leaves for a modern couple: an unmarried partner is nowhere in that list.
The procedure is notarial, and it is where the cost and delay land on heirs who live abroad. Those who consider themselves entitled to succeed on intestacy — descendants, ascendants, spouse or a person in an analogous relationship of affection, or collateral relatives — apply for an acta de notoriedad before a notary of the last domicile or habitual residence of the deceased, of the place where most of the estate lies, or of the place of death, or of a neighbouring district (arts. 55 and 56 of the Ley del Notariado), supported by documents evidencing the relationship and by the declaration of at least two witnesses (art. 56.2). The notary must notify the Notarial College the same day the request is admitted, and may not issue any copy of the act until twenty working days have elapsed from that notification (art. 209 bis of the Reglamento Notarial), and the file must include the death certificate and the certificate from the Registro General de Actos de Última Voluntad. Layer on top of that, for a family in Manchester or Rotterdam, a NIE for each heir, powers of attorney with apostille, sworn translations of birth and marriage certificates, and the six-month tax clock running throughout — and the case for spending an hour with a notary while you are alive makes itself. Any interested party may also force the pace afterwards: a notary can notify a called heir that they have thirty calendar days to accept purely and simply, accept under benefit of inventory, or renounce, warning that silence counts as pure and simple acceptance (art. 1005 CC).
The Valencia Region: the Civil Code governs, the tax rules are regional
There is no Valencian foral succession law in force. Succession to a property in Torrevieja, Orihuela Costa, Alicante, Dénia, Jávea or Benidorm is governed by the Spanish Civil Code whenever Spanish law is the applicable law: the legítima of arts. 806 to 808, the widowed spouse usufruct of arts. 834 to 840, the intestacy order of arts. 912 and following. Unlike Catalonia, Aragón, Navarra, the Basque Country, Galicia or the Balearics, the Comunitat Valenciana has no separate body of succession rules that could give a different answer, so the reserve your children hold over two thirds is the Civil Code reserve and nothing else.
The region does have a civil-law history, and the Constitutional Court has been strict about it. Judgment 82/2016 of 28 April, on a challenge brought by the President of the Government, declared Ley 10/2007 of the Valencian Parliament on the Valencian matrimonial property regime unconstitutional and void, holding that the Comunitat Valenciana lacked competence under art. 149.1.8 of the Constitution to legislate on a matter not shown to belong to the historic Valencian customary civil law (published in the BOE as BOE-A-2016-5194). That ruling concerns the matrimonial property regime, not succession — but it matters here for two reasons. Marriages in the region fall back on the Civil Code sociedad de gananciales, and matrimonial property is excluded from the Regulation altogether (art. 1.2.d), so the marital regime is liquidated first and only the deceased half enters the estate.
What is genuinely regional is the tax. Where the deceased was not resident in Spain, the heirs are entitled to apply the rules approved by the Autonomous Community in which the greatest value of the assets and rights of the Spanish estate is situated (second additional provision, One.1.a, of the Inheritance and Gift Tax Act), and for a Costa Blanca property that is the Comunitat Valenciana. So the honest summary for a British, Dutch or Norwegian owner in Torrevieja is this: the law of your nationality can govern who inherits, the Civil Code governs it if you say nothing, and the Valencian rules govern what the heirs pay in either case. Our inheritance tax guide for the Valencia region deals with the second half.
Tip
Two separate questions, asked in this order. First, which law governs the succession — habitual residence or a choice under art. 22. Second, which Autonomous Community rules apply to the inheritance tax — normally where the greatest value of the Spanish estate lies. Answering the first does not answer the second, and confusing them is the most common error in advice found online.
Your checklist if you already own property in Spain
Start with the document you already have. Read your home-country will and look for two things: whether it says anything at all about the law governing your succession, and whether it contains a general clause revoking all former wills. If it was signed before 17 August 2015 in accordance with a law you could have chosen under the Regulation, art. 83.4 may already treat that as a choice of that law — but relying on a transitional presumption written for someone else is not a plan. Then ask yourself the factual question honestly: where would an authority say you were habitually resident, on the recital 23 test, if you died this year?
Then close the gaps. Sign a Spanish open will before a notary, limited to the assets you own in Spain, containing an express choice of the law of your nationality if that is what you want, naming the territorial unit precisely where your State has more than one legal system (art. 36), and stating that it does not revoke your dispositions over assets outside Spain. Have the home-country will amended to carry the mirror clause. Check the register: the Registro General de Actos de Última Voluntad only knows about wills granted or notified in Spain, so a will signed abroad will not appear there and your heirs need to be told where it is. Keep a copy of the Spanish will with the property deeds, the NIE and the last IBI receipt.
Finally, review it when life changes, not when it is too late. Marriage, divorce, a new child, the sale or purchase of a Spanish property, a change of habitual residence and a change of nationality all move at least one of the pieces. And separate the two files in your head permanently: the Regulation decides who inherits, the Spanish Inheritance and Gift Tax Act decides what the heirs pay and by when. Our step-by-step guide to inheriting property in Spain covers what the heirs actually do after a death, and spainfiscal can prepare the Spanish will, coordinate the wording with your solicitor at home, and handle the succession file when the time comes.
Step-by-step
How to put a Spanish will in place, step by step
Decide whether to choose the law of your nationality
Work out where you would be held habitually resident on the overall assessment of recital 23, then decide whether you want that law or the law of a State whose nationality you hold (art. 22.1). Where your State has several legal systems, identify the unit (art. 36).
Read the will you already have
Check whether the home-country will contains a choice of law and whether it carries a general clause revoking all former wills. A disposition made before 17 August 2015 under a law you could have chosen may already count as a choice (art. 83.4).
Get your identification and NIE in order
Bring your passport or national identity document and your NIE, plus the full names, dates of birth and addresses of the people you are naming and a clear description of what you own in Spain.
Instruct a Spanish notary, with an interpreter if you need one
The open will is granted before a notary competent in the place (art. 694 CC). If you express your wishes in a language the notary does not know, an interpreter of your choosing translates and the deed is written in both languages (art. 684 CC).
Include the two clauses that matter
The express choice of law under art. 22, and a clause limiting the will to assets situated in Spain and stating that it does not revoke your dispositions over assets elsewhere (art. 739 CC).
Sign the will and take the authorised copy
The notary reads the will aloud, you confirm and sign in a single uninterrupted act (arts. 695 and 699 CC). The original stays in the protocol; take the authorised copy and keep it with the title deeds.
Align the foreign will and confirm the registration
Have the home-country will amended so it revokes only dispositions over assets outside Spain. The Spanish grant is reported to the Registro General de Actos de Última Voluntad through the Notarial College (Annex II of the Reglamento Notarial); review everything after any marriage, divorce, birth, move or property purchase.
| Situation at the date of death | Law applied to the succession | Article |
|---|---|---|
| Habitually resident in Spain, no choice of law in any will | Spanish law for the whole estate, forced heirship included | Art. 21.1 |
| Habitually resident abroad, no choice of law, property in Spain | The law of that State of habitual residence, for the whole estate | Arts. 20 and 21.1 |
| A will expressly choosing the law of a State whose nationality you hold | The chosen national law, wherever you were living | Arts. 22.1 and 22.2 |
| Moved shortly before death, manifestly closer connection elsewhere | The law of that other State, exceptionally | Art. 21.2 |
| Will made before 17 August 2015 under a law you could have chosen | That law is deemed to have been chosen | Art. 83.4 |
| Spanish inheritance tax on the Spanish property | Spanish law in every row above, six months from the death | Art. 1.1 Reg.; art. 7 LISD |
| Spanish will for Spanish assets | Home-country will only | |
|---|---|---|
| Where the original is kept | Notary protocol in Spain, grant entered in the Registro General de Actos de Última Voluntad | Abroad, under the custody rules of that country |
| What the heirs must produce | Death certificate, últimas voluntades certificate and an authorised copy | The foreign will plus whatever grant that system requires, sworn translation and apostille |
| Choice of law under art. 22 | In the deed the Spanish notary drafted and read aloud | Only if the foreign will happens to contain one |
| Typical delay before the deed of acceptance | Short once the tax file is ready | Longer: the foreign process has to finish first |
| Risk of accidental revocation | Controlled by an express clause limiting what it revokes (art. 739 CC) | A later Spanish will, or a later foreign one, can revoke it |
| Effect on Spanish inheritance tax | None: same tax, same six-month deadline | None: same tax, same six-month deadline |
FAQ
Frequently asked questions
Which law governs my estate if I own a property in Spain?
The law of the State where you were habitually resident at the time of your death, applied to the succession as a whole (art. 21.1 of Regulation (EU) 650/2012), unless you chose the law of your nationality in a will (art. 22). The Regulation applies that law whether or not it is the law of a Member State (art. 20), so where the property sits does not decide the question by itself.
Can I choose English law, or the law of my home country, for my Spanish estate?
Yes, if it is the law of a State whose nationality you hold at the time you make the choice or at the time of death (art. 22.1 of the Regulation). The choice must be made expressly in a disposition of property upon death or be demonstrated by its terms (art. 22.2), which in practice means a clause in a will. Where your State has several legal systems, name the unit — the law of England and Wales, not British law (art. 36).
Does choosing my national law avoid Spanish inheritance tax?
No. The Regulation does not apply to revenue matters (art. 1.1), and Spanish inheritance tax is charged on assets situated in Spain whatever law governs the succession (art. 7 of the Inheritance and Gift Tax Act). The return is due within six months of the death, extendable by an equal period if requested within the first five months (arts. 67.1.a and 68 of the ISD Regulation).
What is the legítima and how much of my estate does it affect?
It is the portion of the estate the law reserves for forced heirs, which the testator cannot dispose of (art. 806 of the Civil Code). Where there are children or descendants it is two thirds of the estate, of which one third may be applied as mejora among them, leaving one third freely disposable (art. 808). Where there are no descendants but there are ascendants, their reserve is one half, or one third when they concur with the surviving spouse (art. 809).
What does my spouse get under Spanish law?
A usufruct, not ownership. A spouse not legally or de facto separated who concurs with children or descendants takes the usufruct of the third of mejora (art. 834 of the Civil Code); with ascendants and no descendants, the usufruct of half (art. 837); with neither, the usufruct of two thirds (art. 838). The heirs may convert it into a life annuity, the products of certain assets or a capital sum (art. 839).
What happens to an English will that leaves everything to my spouse?
If Spanish law governs the succession, your children can claim their reserve against it. A forced heir left less than their share may demand the shortfall (art. 815 of the Civil Code) and have excessive dispositions reduced (art. 817); where forced heirs are simply omitted, art. 814 annuls the institution of heir, with the institution in favour of the spouse annulled only insofar as it prejudices the legítimas. The practical effect is that the deed of acceptance cannot be signed and the property cannot be registered or sold.
Do I need a Spanish will if I already have one at home?
Legally no, practically almost always yes. A foreign will can govern Spanish assets, but the heirs must produce, translate, apostille and have recognised whatever their own system requires before a Spanish notary will sign the deed of acceptance. A Spanish open will stays in the notary protocol, is entered in the Registro General de Actos de Última Voluntad, and is the natural place for the art. 22 choice of law.
Can my Spanish will revoke my English will by accident, or the other way round?
Yes, and it is the most common avoidable disaster in this area. An earlier will is revoked by operation of law by a later perfect one unless the later one says the earlier subsists in whole or in part (art. 739 of the Civil Code). The Spanish will must state that it disposes only of Spanish assets and revokes nothing else, and the home-country will must carry the mirror clause instead of its standard revocation of all former wills.
What is the European Certificate of Succession and do I need one?
It is a certificate created by the Regulation, issued for use in another Member State, proving the status and rights of heirs, legatees, executors and administrators (arts. 62 and 63). Its use is not mandatory and it does not replace national documents (art. 62.2 and 62.3). It is worth obtaining where assets or banks sit in more than one participating Member State; it is of no help in Ireland, Denmark or the United Kingdom, and a purely Spanish estate is normally handled with the Spanish deed of acceptance.
Do I need to speak Spanish to sign a will before a Spanish notary?
No. Where you express your wishes in a language the notary does not know, an interpreter of your choosing translates them into the official language the notary uses, and the instrument is written in both languages, stating which one you used (art. 684 of the Civil Code). Where you use a foreign language, the open will is written in that language and in the official one even if the notary knows yours (art. 684), and the interpreter attends the grant (art. 698.3).
How much does a Spanish will cost?
Notarial charges follow the tariff approved by Real Decreto 1426/1989 and its general rules of application, so the honest answer is to ask the notary for a quotation for your specific document rather than trust a figure from a forum. A simple open will is among the least complex notarial instruments, and the cost is a fraction of what an unresolved forced-heirship dispute costs the family later.
Is there a Valencian foral law of inheritance for Torrevieja or Jávea?
No. There is no Valencian foral succession law in force, so succession in the Comunitat Valenciana is governed by the Spanish Civil Code whenever Spanish law applies. The Constitutional Court, in judgment 82/2016 of 28 April, annulled the Valencian matrimonial property statute Ley 10/2007 for lack of competence under art. 149.1.8 of the Constitution, which is a matrimonial-property matter rather than a succession one. What is genuinely regional is the inheritance tax, applied under Valencian rules where the greatest value of the Spanish estate lies.
Sources
- EUR-Lex — Regulation (EU) No 650/2012 on succession (arts. 20, 21, 22, 23, 27, 36, 62-70, 83, 84)
- BOE — Código Civil (arts. 684, 694-699, 737-739, 806-818, 834-840, 912-946, 1005)
- BOE — Ley 29/1987, Inheritance and Gift Tax Act (arts. 6 and 7; second additional provision)
- BOE — Ley del Notariado (arts. 55 and 56: notarial declaration of heirs)
- BOE — Reglamento Notarial (art. 209 bis; Annex II: Registro General de Actos de Última Voluntad)
- BOE — Hague Convention of 5 October 1961 on the form of testamentary dispositions (in force for Spain since 10 June 1988)
- BOE — Constitutional Court judgment 82/2016 of 28 April (Valencian matrimonial property regime)
- BOE — Real Decreto 1426/1989, tariff of notarial fees
Last updated: 2026-09-10