Planning an international succession:  
could Spanish inheritance law apply to your estate?

Warning: The information set out below is a general guideline provided by DOMENECH ABOGADOS. Specific advice should be sought before any action in reliance on it is taken, as explained more fully in this website's legal notice.
Some legislations on succession are based on the principle of freedom of the testator without imposing specific restrictions on forced heirship. But this is not the case in Spain, where forced heirship rules, also known as “entrenched rights”, apply in relation to children and spouses. This means that under the Spanish inheritance system, children – whether born in or out of wedlock - and spouses will always be entitled to claim their share of the estate of the deceased person. This can be particularly significant when the testator has more than one “ family”, ie children from a previous marriage to that existing at death. 
Does this mean that Spanish forced heirship rules may apply to your estate, as a foreigner, if you die in Spain or if you have property in Spain? The simple answer is “probably not”; this is because, under Spanish rules, your succession will in principle be determined in accordance with the law of your nationality at the time of death. Therefore, from a Spanish perspective, if you die a British, French or German citizen, for example, it’ll be British, French or German law that will establish how your estate should be distributed and among which heirs. 
However, whenever an international element is present in an inheritance case, you shouldn’t expect things always to be that simple: in fact, they can get an awfully lot more complicated! Why is it that?  Because if you aren’t domiciled or resident in the country of your nationality or if you have property in several jurisdictions, there may be a clash between the different legislations involved in your succession.  To start with, notions of “domicile” and “residency” may differ from one country to another, as well as the rules on simultaneous deaths of beneficiaries (for instance, in a car accident). Plus your own national law may refer to another country’s legislation to govern the succession to certain assets but not to all of them. Thus, for example, UK legislation accepts the law of the country of location in relation to succession of real estate and the law of domicile in relation to movable assets (such as cash in the bank, jewellery or cars). 
The main problem in an international succession is to ascertain carefully how these different legal notions should be interpreted and, in some cases, also to look ahead to whether a Spanish court is likely to accept any remittal to its own legislation or to foreign laws. In this regard, although the tendency of the Spanish Supreme Court has been very often to apply the law of nationality and reject legislation referrals, there have been some decisions establishing the applicability of Spanish forced heirship rights upon the death of foreigners under certain circumstances. 
For all these reasons, an international succession with a Spanish angle is a matter too complex to be decided lightly, based on a pre-packaged legal draft or service, since it requires special consideration of the merits of each case, with specific attention being given to the issues of domicile and the location of the parties and assets involved.
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