Wills
Making a will in Spain if you are not Spanish
If you live in Spain or own property here, a will before a Spanish notary makes things much easier for your family. It is also where you decide something important: whether your inheritance follows the law of the country where you live or the law of your nationality. If you live in Madrid, for example, the first is the Civil Code, which reserves two thirds for the children. I prepare the Spanish will with you and, for the part that depends on the law of your country, I work with a lawyer from there.
Saúl Rosell Manglano · Inheritance in Spain · Madrid · ICAM 83.198
2/3
Share of the estate the Spanish Civil Code reserves for the children, when the Civil Code applies. The other third is free.
1 law
In your will you can choose the law of your nationality instead of the law of the country where you live. Only that one.
Registered
A will before a Spanish notary is reported to the Spanish register of last wills, so your family will find it.
The law of another country, always with a lawyer from there
I am a Spanish lawyer and I advise on Spanish law, including the European rules that Spain applies to inheritances. When part of the case depends on the law of another country, for example because the deceased chose it in their will, or because there are assets or taxes there, I do not advise on that law on my own: I work together with a lawyer from that country, yours if you already have one. Before we start, I tell you who that lawyer is and what each of us will do.
Why a Spanish will
It is the simplest will for your family to use in Spain: the notary keeps the original, it is reported to the register of last wills, and the heirs get an official copy that needs no apostille or translation to be used here.
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If you are British, a will before a Spanish notary normally avoids the need for a grant of probate for your Spanish assets.
It is also the natural place to choose, if you want to, the law of your nationality, clearly and in the right form.
Spanish forced heirship
Under the Civil Code, which is the law in Madrid and most of Spain, parents can freely leave only one third of what they have. The other two thirds are the children's reserved share.
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One third is divided equally among all the children. Another, the improvement third, can be shared out among children and grandchildren as the parent wishes. The last third can go to anyone, including a partner or someone outside the family.
The surviving spouse who was not separated also has a life interest: in one third of the estate if there are children, in half if there are parents and no children, and in two thirds if there are neither.
Sons and daughters inherit equally, whatever their sex and whatever marriage they were born of. A partner who was not married to the deceased has no reserved share under the Civil Code: they receive only what the will leaves them.
Gifts made during life count when the reserved shares are calculated. Some regions with their own civil law, such as Catalonia or the Balearics, have different reserved shares.
Choosing the law of your nationality
You can choose in your will the law of your nationality for your whole estate, instead of the law of the country where you live. With two nationalities, either of them. No other law can be chosen.
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The choice must be clear. A generic sentence, such as leaving your children what your national law gives them, may not be enough.
If you choose it, that law decides who inherits, how much, and whether there is a reserved share. The law of England and Wales, for example, starts from freedom of testation, although if you die domiciled there your family can ask an English court for reasonable financial provision.
Whether choosing your law suits you depends on what that law says. I review that part with a lawyer from your country before you sign, and I draft the Spanish will so that the choice is stated clearly and in the right form.
Two wills, two countries
A later will can revoke an earlier one, even if it was made in another country. If you keep a will at home and another in Spain, they must be coordinated and say that they do not revoke each other.
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A joint will of two spouses, common in some countries, is prohibited for Spaniards but can be valid for a foreigner if their law allows it.
Wills made before 17 August 2015 may count as a choice of the law of your nationality if they were clearly made under it. If yours is old, it is worth reviewing.
Disinheriting, and contesting a will
Under the Civil Code, a child can only be disinherited for one of the causes set out in the law, stated in the will, and if the child denies it, the heirs have to prove it. The Supreme Court accepts psychological abuse as a cause, but lack of contact counts only if it is the child's fault, through blameworthy and unjustified conduct, and causes the parent harm that can be proven.
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A will can be annulled if the person could not form or express their wishes when signing, even with help, or was pressured or deceived. The notary's assessment of capacity at the time of signing carries great weight.
How we will understand each other
I work in Spanish. With clients abroad I use translation tools to read and answer messages, and we manage well that way. The documents Spain needs from your country go with a sworn translation where required, and I tell you which ones before you ask for them. If you write to me in English, I will answer you.
Common questions
Can I leave everything to my spouse?
If the Civil Code applies, not everything: two thirds are reserved for the children. Your spouse can receive the free third, besides the life interest the law gives them. If you choose the law of your nationality, it depends on that law, and I review that part with a lawyer from your country before you sign.
I already have a will at home. Do I need one in Spain?
It is not compulsory, but it is usually advisable if you own property in Spain. What matters is that both wills are coordinated, so that the later one does not revoke the earlier one by mistake.
Can a married couple make a joint will?
The Spanish Civil Code prohibits joint wills for Spaniards. A joint will made by foreigners under a law that allows it can be valid in Spain. Before a Spanish notary, each spouse usually makes their own.
What happens if I die without a will?
If the Civil Code applies, the children inherit in equal shares; without children or grandchildren, the parents or grandparents; without any of them, the spouse, unless they were separated, even informally, ahead of brothers and sisters. The spouse also has a life interest when there are children or parents. After them come brothers and sisters, with the children of a sibling who has died taking that sibling's place, and other relatives up to the fourth degree. If the law of another country applies, that law decides.
Can I disinherit a child?
Under the Civil Code, only for one of the causes set out in the law, stated in the will, and if the child denies it the heirs have to prove it. Lack of contact counts only if it is the child's fault, through blameworthy and unjustified conduct, and causes the parent harm that can be proven. If what you want is to leave a child the minimum, it can be done with the improvement third and the free third, without any cause.
An inheritance with something in Spain?
Tell me where the deceased lived, their nationality and what they owned in Spain. I will tell you which law applies and what has to be done here, and send you a written quote, free of charge.
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