Many foreign owners of a Spanish home assume that what happens to it on death is settled by the will they made back home. Often it is not. Spain, like several European countries, has a tradition of forced heirship that reserves part of an estate for certain relatives, and it can reach a Spanish property in ways that quietly override the owner’s intentions. The good news is that a European rule lets most foreigners take back control, but only if they act while alive. The villa’s future is decided by a document, and the document has to exist before it is needed.
Forced heirship, briefly
Under a forced-heirship system, a portion of the estate is reserved by law for protected heirs, typically children, regardless of what the deceased might have preferred. An owner who imagined they could leave the Spanish home freely, to a spouse, to one child, to someone outside the family, may find the law has already allocated part of it elsewhere. For a foreigner from a country with full testamentary freedom, this is a genuine and unwelcome surprise, and it surfaces at the worst possible moment.
The Spanish version is precise about the arithmetic. Article 806 of the Spanish Civil Code defines the reserved portion as the part of the estate the testator cannot dispose of, and article 807 names the protected heirs: children and descendants, failing them parents and ascendants, and the surviving spouse. Article 808 fixes the share of children and descendants at two thirds, one of which may be applied as a mejora, and article 813 forbids any charge or condition on it, save the widowed spouse’s usufruct and what articles 782 and 808 allow.
Spain is also not one civil law. Article 14.1 ties the applicable system to vecindad civil, which article 15 assigns on acquiring Spanish nationality, and article 13.2 leaves the Civil Code as supplementary law where a territory kept its own.
Which law reaches the villa before any will is opened
The instrument that decides is Regulation (EU) No 650/2012, which under article 83(1) applies to deaths on or after 17 August 2015. Article 21(1) sends the succession as a whole to the law of the deceased’s habitual residence at death, article 4 gives jurisdiction to the courts of that Member State, and article 20 applies the designated law whether or not it is a Member State’s. Article 23(2)(h) puts the reserved shares squarely inside it.
Habitual residence is not a registration, nor the 183-day income tax test. Recital 23 requires an overall assessment of the deceased’s life in the years preceding death, weighing the duration and regularity of his presence and the reasons for it, while article 21(2) allows a different answer where he was manifestly more closely connected elsewhere.
What passes is also not always the villa. Article 1(2)(h) leaves outside the Regulation the questions governed by company law, including the clauses in articles of association that decide what happens to shares on a member’s death. Holding through a company moves the object of the succession from a plot to a block of shares, the position of anyone who has inherited a company in another country.
The European rule that rescues it
European succession rules allow a person to elect that the law of their nationality, rather than the law of their country of residence, governs the succession of their estate. For a foreign owner of a Spanish home, this election, made properly in a will, can mean their own national law applies to the whole succession, restoring the testamentary freedom their home country grants and displacing Spanish forced heirship. It is a powerful fix, and for many foreign owners it is the decisive step, as we set out more fully in our note on cross-border succession in Europe.
The mechanics are exact. Article 22(1) allows the law of a State whose nationality the person holds when the choice is made or at death. Article 22(2) requires it to be made expressly in a disposition of property upon death, or demonstrated by its terms, which is why it belongs inside the will itself.
Without an election, article 34(1) puts the private international law of a designated third State back into play, and a renvoi to a Member State’s law is accepted. A system that refers succession to immovables to the law of their location therefore sends the villa back to Spanish law. That is the trap set for the American buying a home in Spain. Article 34(2) shuts renvoi out for a law chosen under article 22.
Membership is not universal either. Recital 82 records that the United Kingdom and Ireland did not take part in adopting the Regulation, under Protocol No 21, and recital 83 records the same for Denmark under Protocol No 22. The United Kingdom has since left the Union, one more line in the ledger for the British buyer in Spain.
The villa’s future is not decided by your wishes. It is decided by whether you wrote them down in the form the law recognizes, before it mattered.
The last argument is public policy, and it is narrower than it looks. Article 35 allows a provision of the applicable law to be refused only where applying it is manifestly incompatible with the public policy of the forum, and recital 58 confines that to exceptional circumstances. Recital 54 closes the parallel route through article 30, because a reserved share larger than the one in the applicable law is not a special rule of that kind.
The marriage decides what is yours before the succession decides who gets it
There is a prior question the Regulation does not answer. Article 1(2)(d) excludes matrimonial property regimes, which are governed instead by Regulation (EU) 2016/1103, applicable from 29 January 2019 in the Member States authorised to establish enhanced cooperation by Council Decision (EU) 2016/954, Spain among them.
Where the spouses made no choice, article 26(1) points to the law of their first common habitual residence after the marriage, failing which their common nationality when they married. Article 69(3) limits that chapter to spouses who marry, or specify the applicable law, after 29 January 2019, so an earlier marriage silent on the point runs on older rules.
If the answer is Spanish law, article 1316 makes the sociedad de gananciales the default where there are no capitulaciones, and article 1344 divides the common gains by halves on dissolution, so half the villa may never enter the estate. Article 104(3) of the Spanish local finance law keeps the adjudication to a spouse in payment of common assets outside the charge on land.
The tax follows a different map
Article 1(1) of Regulation 650/2012 states that it does not apply to revenue matters, so the law deciding who inherits says nothing about the bill. Spanish inheritance tax, in Ley 29/1987, taxes each heir rather than the estate: article 6 charges residents of Spain on what they receive wherever it is situated, and article 7 charges everyone else on assets situated in Spanish territory, even where nobody has ever been tax resident in Spain.
Article 9(3) values immovable property at the valor de referencia in the cadastral rules at the accrual date, unless the declared value is higher. The rate is regional, with no single national answer: article 21(1) applies the scale approved by the autonomous community, and the State scale in article 21(2) is only a fallback, running to 34 per cent on its top band before the article 22 multiplier.
Which region applies is settled by the second additional provision, whose heading records that it conforms the tax to the Court of Justice judgment of 3 September 2014 in case C-127/12, and whose first part was amended in 2021 to speak simply of a deceased not resident in Spain, with no limit to residents of the Union or the European Economic Area. The heirs of a non-resident may then apply the rules of the community holding the greatest value of the Spanish assets, although the Tax Agency’s page on inheritance tax for non-residents shows these are still self-assessed with the State on form 650.
The town hall bills separately for the land. The tax on the increase in value of urban land, in articles 104 to 110 of the local finance law, falls on transfers of ownership by any title, and article 106(1)(a) makes the acquirer the taxpayer on a gratuitous transfer, so the heir pays. Article 110(2)(b) allows six months from the death, extendable to a year on request, and article 104(5) drops the charge where no increase in value is proved.
Why it must be done in advance
The election only works if it is made, in a valid will, before death, and this is where good intentions fail. An owner who meant to sort out the Spanish succession, but never did, leaves their family with the default, which may be exactly the forced-heirship outcome they would have chosen to avoid. There is no retrospective fix; the window is the owner’s lifetime, and it closes without warning.
What follows a death is a documentary sequence on a short clock. The heirs first need the certificate of last will acts, which the Ministry of Justice describes as the document recording whether a person made a will and before which notary, and states is required for any act of succession. Article 67(1)(a) of the inheritance tax regulation then allows six months from the death to file, extendable only on a request made within the first five months.
For a cross-border estate the European Certificate of Succession carries the rest. Article 62 creates it, article 64 gives competence to the authority of the State whose courts have jurisdiction, and article 69 makes it effective in all Member States without special procedure. Article 69(5) makes it a valid document for recording succession property in a register, but recital 18 preserves the registering authorities’ right to require the further documents national law demands, including on the payment of revenue.
Settle the villa’s future while you can
For any foreign owner of a Spanish home, settling the succession is a small, one-time step with very large consequences: decide who should inherit, make the election of national law where it helps, and put it in a will that Spain will recognize, coordinated with the home-country estate plan so the two do not conflict. It sits naturally alongside the ownership decision in our note on holding a Spanish home, because how the property is owned and how it passes are two halves of the same question. Handled in advance, the villa goes exactly where the owner intends. Left to the default, it can go somewhere they never chose.
Montclare advises international individuals and families on buying, holding and moving to Spain: the structure, the tax, the residence and the succession, handled as one plan. Our services are set out on our services page.
This article is informational and does not constitute tax, legal or immigration advice. Spanish regimes vary by region and change frequently, and treatment depends on personal circumstances. Each engagement is subject to scope and applicable regulation.