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Why British Expats in Spain Need a Spanish Will After Brexit

Published April 2025 · 11 min read · By International Inheritance Spain

Brexit had far-reaching consequences for British nationals living in Spain or owning Spanish assets. Among the least publicised but most important changes is the impact on inheritance law. Many British families do not realise that their existing UK will — or their assumption that UK law governs their estate — may no longer be correct.

This article explains exactly what changed, what it means in practice and why every British national with property or assets in Spain should consider making a Spanish will.

What Was the Position Before Brexit?

EU Succession Regulation 650/2012 (Brussels IV) came into force on 17 August 2015 and applied across EU member states including the UK at that time. It allowed any EU national — including British nationals while the UK was in the EU — to choose the law of their nationality to govern their entire estate across all EU member states.

In practice, this meant that a British national living in Spain could make a will choosing English law (or Scots law), and that choice of law would be respected by Spanish courts and the Spanish notary. Crucially, this allowed British testators to avoid the Spanish legítima (forced heir rules) which would otherwise require a fixed proportion of the estate to pass to certain heirs regardless of the will.

What Changed After Brexit?

From 1 January 2021, the UK is no longer a member of the EU and no longer participates in EU Succession Regulation 650/2012. The consequences:

• New wills: A British national making a will today cannot use the Regulation to choose UK law for Spanish assets. Spanish lex situs rules apply — Spanish law governs Spanish immovable property.
• Existing wills made before 1 January 2021 with a choice of UK law: These are more complex. The Regulation's transitional provisions may still give effect to the choice of law made while the UK was an EU member state, but this is subject to ongoing legal debate and varies by region in Spain.
• Estates of UK nationals who die now: If the deceased was habitually resident in Spain, Spanish law governs their worldwide movable estate. Spanish law governs their Spanish immovable property in any case.

The Legítima: Spanish Forced Heirs

The most significant practical consequence of Brexit for British testators in Spain is the re-application of the Spanish legítima (forced heir rules). Under Spanish law:

• Children are entitled to two-thirds of the estate in total (one-third as strict legítima, one-third as mejora to be shared among children at the testator's discretion)
• Only one-third (libre disposición) can be freely left to anyone
• A surviving spouse receives a usufruct (life interest) over at least one-third of the estate

A British national who wanted to leave their entire Spanish estate to their spouse, to a charity, or to a partner who is not their spouse, may find that their pre-Brexit will is no longer effective for their Spanish assets.

Why You Need a Spanish Will Now

Making a Spanish will (testamento abierto) drafted by a Spanish notary solves most of these problems. A well-drafted Spanish will:

• Explicitly addresses Spanish assets and succession rules
• Can use foral law (Balearic, Catalan, Basque, Aragonese, Navarrese or Galician) if applicable — these regional succession systems sometimes offer more flexibility than common civil law
• Coordinates with your UK will to ensure there is no conflict or gap
• Ensures a Spanish notary can process your estate efficiently and quickly, avoiding costly intestate procedures
• Specifies exactly how Spanish assets should pass, minimising disputes among heirs

What About Habitual Residence?

EU Succession Regulation 650/2012 uses habitual residence at the time of death as the primary connecting factor. For a UK national who is habitually resident in the UK, the Regulation would point to UK law — but the UK is now a third country, so Spanish courts will fall back on Spanish private international law rules, which are more complex and less predictable.

The safest course of action for any British national with Spanish assets is a Spanish will. The cost is modest (typically €150–€300 at a Spanish notary) and the potential saving in tax, time and family conflict is enormous.

UK Nationals Who Died Before 1 January 2021

If you are dealing with the estate of a UK national who died before Brexit and had made a will choosing UK law under the Regulation, that choice of law should generally still be valid. Contact us to review the specific situation.

Coordinating a UK Will and a Spanish Will

It is entirely normal — and advisable — to have both a UK will and a Spanish will. The Spanish will should contain a clause explicitly revoking any previous Spanish wills but NOT revoking the UK will. Similarly, the UK will should be drafted to exclude Spanish assets or to confirm that the Spanish will governs Spanish assets. We coordinate with UK solicitors to ensure both wills work together correctly.