Wills and Estate Planning

A foreign resident in Spain is usually permitted to dispose of his/her Spanish assets according to the law of his home country, provided there is a valid Will under the law of that country. If you have lived in Spain for a long time, it may be necessary for you to create a legal domicile in your home country for the purpose of making a Will.

A Will made by a foreigner regarding Spanish assets is not invalidated if it does not bequeath property in accordance with Spanish law, as Spanish law is not usually applied to foreigners. The disposal of property (buildings or land) in Spain is governed by the law of the deceased’s home country unless there is a dispute among the beneficiaries, in which case Spanish law is applied.

Under Spanish law, a surviving spouse retains all assets acquired before marriage, half the assets acquired during the marriage, and all personal gifts or inheritances which have come directly to the spouse. The remaining assets must be disposed of under the law of “obligatory heirs”.

When a person dies, his estate is divided in 3 equal parts:

• One third must be left to the surviving children in equal parts.
• Another third must also be left to the children, but the testator decides how it is to be divided. A surviving spouse has a life interest in this second third and the children who inherit it cannot dispose of it freely until the surviving parent dies.
• The final third can be freely disposed of. If a child has died leaving children of his own, they automatically inherit his share. If the deceased has no children, his surviving parents have a statutory right to one-third of his estate if he has a surviving spouse or half of his estate if he doesn’t.