For many, the most compelling reason to make a will is to ensure friends and family are relieved of the stresses associated with losing a loved one. But the level of certainty and control a last will and testament purports to offer, although comforting, is not always as it seems when dealing with assets in Spain.
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A recent ruling awarding Esteban Marchena García, the ‘illegitimate’ son of a wealthy Spanish aristocrat, a €2million slice of his biological father’s estate, has cast some much needed light on Spanish inheritance law. What’s more, García’s case raises some interesting questions and holds wider implications for those who have settled in the country, but wish to exclude their children from inheriting their estate.
What is Spanish forced heirship?
As it stands, Spain operates a system of forced heirship. What this means is that a certain percentage of a deceased’s assets in Spain must be transferred to their next of kin and/or children.
Currently, in most of Spain children are entitled to two-thirds of their deceased parent’s estate, a third of which must be distributed equally to all children, with the remainder being allocated in whatever denomination the deceased has specified in his/her will.
What the García ruling has made clear is that it is possible to recognise an illegitimate child for inheritance purposes. That is to say, if a parent refuses to acknowledge the existence of their biological child, and despite that child being adopted into another family (as was the case with Garcia), that parent cannot escape their obligations of forced heirship.
But the law of forced heirship sits at odds with the laws of inheritance in England and Wales, where the concept is not applicable. As such, many Brits who have made a new life for themselves in Spain and have assets in the country may be caught out by a legal obligation to distribute their estate among their offspring even if they don’t want to – meaning that where there is a will, there is not always a way.
It is this conflict between Spanish and English probate law that has caused a headache for many Brits who have made wills in their native country but currently reside in Spain. But it is a dilemma that can be easily avoided.
Does forced heirship apply to all estates in Spain?
According to English and Spanish law when read together, English inheritance law will apply provided the deceased owned real estate, such as some land or a house, in the UK at the time of his/her death. In that case the Spanish laws of forced heirship will not apply to the estate and the provisions of the deceased’s last will and testament will apply, because those making a will in England have freedom to leave their assets to whomever they wish.
Notwithstanding that English law does not provide for forced heirship formally, if the deceased was domiciled in the UK, a qualifying person who considers that the deceased made insufficient financial provision for him/her may make a claim against the estate in England by way of the Inheritance (Provision for Family Dependants) Act 1975 (the 1975 Act). A successful 1975 Act claim acts against testamentary freedom and so effectively provides for rights of forced heirship in England by the back door, hence the advice of a specialist contentious probate lawyer should be sought in respect of any such claim.
Conversely, if the deceased owned no real estate in the UK and lived almost permanently in Spain, then it is likely that the Spanish laws of forced heirship will apply to the deceased’s estate. In that case the provisions of the deceased’s will are subject to any claim made against the beneficiaries by the children of the deceased.
How does the EU Succession Directive affect forced heirship for Brits in Spain?
The EU Succession Directive seeks to provide certainty for EU residents and to resolve this conflict of laws. Essentially the Directive provides that you can elect for the law of your nationality to apply to your estate, regardless of where you may be resident at the time of your death. This means, for example, that you can make a Spanish will in which you state that you elect for the law of England and Wales to apply to your Spanish estate. This will mean that you can leave your estate to whomever you please.
What about Brexit?
At the time of writing we are still in the transition period. What will happen in relation to EU legislation that Brits benefit from in Spain is undecided. It is likely that it will take some time before legislation changes and so, for now, Brits can continue to rely upon the EU Succession Directive. If you wish to keep up to date with Brexit developments and the impact upon inheritance in Spain, please join our mailing list below.
What to do if you are concerned about forced heirship in Spain
What is certain is that if you are thinking of moving to Spain, but are concerned that the Spanish law of forced heirship sits at odds with your intentions, it will be imperative to seek independent legal advice to assess your options. Depending upon your circumstances it may be of use for you to make a Spanish will as well as your English will.
If you own property in Spain and you are concerned about the impact of Spain's forced heirship rules upon your estate please contact us.
More information
For more information on succession and probate, please see our Succession and Probate in Spain pages. For more information on Spanish Wills, please read our article on why you should make a Spanish will and take a look at our Spanish wills pages.
