Inheritance in Spain for non-residents: which law governs your estate

When an estate in Spain has international elements — because the deceased lived abroad, the heirs reside in different countries, or property is held in multiple states — a legally decisive question arises immediately: which country's law governs the succession? The answer determines who inherits, what forced heirs can claim and how assets are transferred. EU Regulation 650/2012, which has applied since 17 August 2015, has fundamentally changed the answer to this question for European Union nationals.

The general rule: habitual residence

Article 21 of the Regulation establishes the default principle: succession is governed by the law of the state where the deceased had his or her habitual residence at the time of death. This displaces the old Spanish rule — which applied the law of the deceased's nationality — for most estates with a European dimension since 2015.

In practice, this means that a German national with habitual residence in the Región de Murcia at the time of death will, as a default, be subject to Spanish succession law — with its legítima (forced heirship) rules, its caps on testamentary freedom and its distribution rules — unless he or she has exercised the right to choose a different law, which the Regulation expressly provides.

The choice of law: the most powerful tool

Article 22 of the Regulation grants any person the right to choose the law of a state of which they are a national to govern their entire estate. This choice — professio iuris in legal terminology — must be made in a will, through an express declaration. It is never presumed.

The practical impact is significant. A French national residing in Spain can:

• Without a choice of law: their estate is governed by Spanish common civil law (or the applicable foral law), including the legítima rules of the Civil Code, which reserve two-thirds of the estate for descendants.
• With a choice of French law: their estate is governed by French succession law, which may be more flexible in certain respects and better suited to their family structure and wishes.

The choice of national law is not always more favourable: some national laws are more restrictive or fiscally burdensome than Spanish law. Analysing which law is most appropriate for the specific case, before drafting the will, is an essential part of estate planning.

The European Certificate of Succession

The Regulation also introduces the European Certificate of Succession (Articles 62–73), a document issued by the competent authority in the state handling the succession — in Spain, a notary or the court, as appropriate — which certifies the status of heir, legatee or estate administrator and produces legal effects in all EU member states without any further recognition procedure. This is the instrument that allows an heir of a Spanish resident to manage assets in Germany, France or Italy without initiating separate court proceedings in each country.

Non-EU nationals: a different regime

The choice of law under Article 22 of the Regulation is also available to nationals of non-EU third countries. For a non-EU national with habitual residence in Spain at death, the default rule under Article 21 applies Spanish law — but they may choose the law of their own nationality in their will, subject to the notary verifying its content and compatibility.

In practice, where the foreign law is difficult to ascertain — as is the case with countries that have no notarial cooperation treaty with Spain — the most reliable approach is often for the non-EU resident to plan their Spanish estate under Spanish law, using the available mechanisms to minimise the legítima and distribute assets according to their wishes as far as possible.

Spanish inheritance tax always applies to Spanish-sited assets

Regardless of which law governs the succession, Spanish Inheritance and Gift Tax (ISD) applies in Spain to assets located in Spanish territory when either the deceased or the heirs are non-residents. Non-residents pay by obligación real — that is, only on assets and rights situated in Spain — and file their return with the State Tax Agency (not with the autonomous communities). This means they do not benefit from autonomous community bonuses such as the Región de Murcia's 99 % reduction for descendants and spouses, unless EU law requires equal treatment.

This point is critical: significant tax savings may be achieved by establishing Spanish tax residence for the heirs or the deceased before the death, with proper estate planning and sufficient advance notice to establish genuine, unchallenged residence.

NIE for non-resident heirs, and apostilles

Non-resident heirs need a NIE to accept the inheritance, file the ISD and complete the registry transfers of Spanish immovable property. Documents issued abroad — wills, death certificates, foreign registers of last wills — must be apostilled (if the country has ratified the 1961 Hague Convention) and, if they are in a language other than Spanish, accompanied by a sworn translation.

How we help with international estates and Spanish assets at RCM Legal

There is a risk that arises consistently in cross-border estate matters: the absence of a will containing an express choice of law under Regulation 650/2012. Without that document, the applicable law defaults to the law of the last habitual residence — often Spain — and the deceased has had no say in whether that was their intention. The consequences are forced heirship obligations, higher tax exposure and longer procedures. Planning in life — choosing the governing law, adapting the asset structure and coordinating the will with a notary — is the decision with the greatest impact on the outcome of the succession.

At RCM Legal we analyse each client's personal and asset situation, determine which law applies and whether an Article 22 election of law is advisable, coordinate the drafting of the will with the notary, and when the death occurs, manage the estate from start to finish: inventory, ISD filing, registration of immovable property in Spain and obtaining the European Certificate of Succession where useful. If you have assets in Spain or have inherited from someone who did, tell us about your case.