Spanish Succession Law · Identifying the Heirs
A complete guide to identifying the rightful heirs of a Spanish estate — covering testate and intestate succession, forced heirship rules, EU Regulation 650/2012, the post-Brexit position for British nationals, trusts and the European Certificate of Succession.
The two paths
When the deceased left a valid will — whether Spanish or foreign — the will determines who inherits, in what proportions and under what conditions. However, Spanish law imposes mandatory limits on freedom of disposition: the legítima (forced share) cannot be excluded regardless of what the will says. A Spanish will must always reserve at least two thirds of the estate for direct-line descendants if any exist.
A foreign will can be used in Spain if it is apostilled under the Hague Convention and translated by a sworn translator. We obtain certified copies of wills from the Spanish Will Registry (Registro de Actos de Última Voluntad) and, where a Spanish will does not exist, work with foreign wills to determine what is legally effective in Spain.
Important: even with a carefully drafted will, Spanish succession law may override the testator's intentions if the will conflicts with the legítima or — for EU nationals — with the law of the country of habitual residence as determined by EU Regulation 650/2012.
Without a will
When the deceased died without a valid will — or with a will that is invalid or does not cover all assets — Spanish intestate succession rules apply. The statutory order of priority under the Spanish Civil Code is:
Intestate proceedings require a formal Declaración de Herederos ab intestato — an official declaration of legal heirs made before a Spanish notary. This takes additional time, which makes early action even more important.
Mandatory law
Spain's forced heirship system is one of the most important — and most frequently misunderstood — features of Spanish succession law for international families. It can override a will that was perfectly valid under the law of another country.
The first third of the estate is the legítima estricta — the strict forced share. This must be divided equally among all children (or their descendants by representation). It cannot be reduced, redirected or burdened in any way by the will. If the will purports to exclude a child from this share, the excluded heir can challenge the will in court.
The second third is the mejora (improvement share). The testator must leave this to descendants — but can choose which descendants and in what proportions. This is the tool for favouring one child over another: leaving the entire mejora to one child doubles that child's inheritance relative to a strict equal division. The testator cannot, however, leave the mejora to a non-descendant.
The final third is freely disposable — the testator can leave it to anyone: a child, a spouse, a partner, a charity, a friend, a trust (subject to Spanish recognition issues). This is the only portion that can be used to benefit a non-family member or to provide for a partner who is not the deceased's spouse.
Cross-border law
For EU nationals, Regulation 650/2012 applies a single, unified rule: the law of the country where the deceased was habitually resident at the time of death governs the entire succession — including assets in other EU countries. Habitual residence is not the same as domicile (a UK concept) or fiscal residence: it is where the deceased had their primary centre of life.
A German national habitually resident in Spain at death: Spanish law governs the entire estate, including assets in Germany. A Dutch national habitually resident in the Netherlands who owned a flat in Marbella: Dutch law governs — but Spanish inheritance tax still applies to the Spanish property.
Understanding which law applies is not just academic. If Dutch law governs, the Spanish forced heirship rules (legítima) do not apply — the deceased could have left everything to a single child or even to a charity. Conversely, if Spanish law applies, the three-thirds system is mandatory.
Regulation 650/2012 allows EU nationals to make an express choice of the law of their nationality to govern their succession. This is done by including a professio iuris clause in a will. The clause overrides the default habitual residence rule.
This is one of the most powerful succession planning tools available to EU expatriates in Spain. Examples:
We draft professio iuris clauses for all EU national clients who own Spanish property and wish to optimise the succession outcome for their family.
Post-Brexit
After 31 December 2020, UK nationals are no longer covered by EU Regulation 650/2012. There is no bilateral succession law treaty between the UK and Spain. The result: Spanish private international law applies, and under those rules, Spanish law governs Spanish immovable property (real estate) regardless of the deceased's domicile, residence or nationality.
This means that for British nationals who own property in Spain, the Spanish legítima applies. A British will that leaves everything to a surviving spouse, excluding children, is partially invalid under Spanish law — the children's legítima estricta (one third) cannot be excluded.
The solution: a Spanish will that is drafted in awareness of Spanish forced heirship rules, coordinates with the UK will (each covering different assets) and — where appropriate — uses the one freely disposable third to benefit the surviving spouse as much as possible. We draft these coordinated will packages for British clients across Spain.
Special categories
Spanish law has evolved significantly in recent decades to recognise all forms of family:
Proving heirship
For estates involving multiple EU member states, the European Certificate of Succession — introduced by Regulation 650/2012 — is a powerful document. Issued by the competent authority in the member state of habitual residence, it confirms the identity and rights of heirs, executors and administrators. Once issued, it is recognised and enforced in all EU member states without further formality.
If the deceased was habitually resident in an EU country (for example, the Netherlands), the ECS issued by the Dutch authorities can be presented directly to the Spanish Land Registry to transfer Spanish property — without going through the full Spanish notarial acceptance process from scratch. We advise on when to obtain an ECS and how to use it in Spain most efficiently.
When there is no valid will covering the Spanish assets, a Spanish notary must issue a formal Declaration of Heirs — a notarial act that identifies the legal heirs based on evidence of family relationships. This requires: the death certificate, the Will Registry certificate (confirming no Spanish will exists), birth certificates of all potential heirs, and sometimes marriage certificates and the death certificates of any pre-deceased heirs.
The process takes a minimum of 15 to 20 working days and must be handled by a notary in the jurisdiction where the deceased was last resident in Spain, or where the main Spanish asset is located. We manage this procedure entirely — collecting all documents, coordinating translations and apostilles, and representing all heirs before the notary.
Complex structures
Spain does not recognise the common-law trust as a legal institution. When a UK or US trust holds Spanish property, Spain looks through the trust structure entirely. The question "who is the heir?" under Spanish law is answered by looking at who is beneficially entitled to the Spanish property — not who is the legal trustee.
In a discretionary trust, beneficiaries are identified by the trustee's exercise of discretion. In a bare trust, the beneficial owner is the heir. In a life interest trust, the life tenant is treated as receiving a usufruct and the remainderman receives the bare ownership. In each case, the Spanish formalities must be completed by the ultimate beneficial owner — with appropriate documentation from the trustee.
We work with trustees, their solicitors and beneficiaries to produce the complete documentation package — trust deed translations, trustee resolutions, beneficiary identity verification — that Spanish notaries and the AEAT require to process the inheritance correctly.
Preterición (preterition) occurs when a forced heir is completely omitted from the will — not left a reduced share, but not mentioned at all. Spanish law distinguishes between two types:
Preterition cases are among the most complex in Spanish inheritance litigation. We advise omitted heirs on their rights and represent them in negotiations and — when necessary — court proceedings.
Before death
Colación is the Spanish legal concept requiring that large lifetime gifts made to forced heirs (children) be brought into account when the estate is distributed — the gift is "collated" against the heir's inheritance share. The purpose is to ensure equal treatment among children over the entire lifetime of the relationship with the deceased.
Not all gifts are subject to colación — only gifts specifically described as advances on inheritance (anticipos de legítima) or gifts that exceed the freely disposable third of the estate. The testator can also expressly dispense with colación in the will.
For international families where a parent has helped one child with a house purchase or business investment, the colación rules can create unexpected disputes between siblings during the inheritance. We advise on how to structure lifetime transfers to minimise the risk of colación disputes.
Pre-deceased heirs
When an heir named in a will predeceases the testator, their share may pass to:
Untangling the correct chain of succession in these scenarios is one of the most complex tasks in international estate administration. We map the complete chain in every estate, including all potential substitution, representation and accretion scenarios, before advising any heir on their position.
Questions answered
Not fully. A UK will can be recognised in Spain if properly apostilled and translated, but Spanish forced heirship rules (legítima) override any provision that would deprive direct descendants of their mandatory share. Post-Brexit, Spanish law governs Spanish immovable property regardless of the UK will's provisions. We advise on drafting coordinated Spanish and UK wills.
Yes. All of the deceased's children — biological and adopted, from any relationship — are forced heirs and are entitled to their share of the legítima. Children from a previous relationship cannot be excluded from the first two thirds of the estate, regardless of what the will says.
Under Spanish national law, an unmarried, unregistered partner has no automatic intestate inheritance rights. If your partner died without a will or without a will that expressly provides for you, you must consult a lawyer about your options immediately. In some autonomous communities (Cataluña, Basque Country, Aragon) registered partners have stronger rights — but only if registered before death.
No — Spain does not recognise the trust as a legal person capable of inheriting. If a will names a trust as a beneficiary of Spanish assets, the AEAT will look through the trust to identify the underlying beneficial owners and tax them as the true heirs. The trust structure does not avoid Spanish inheritance tax.
A thorough heir investigation is essential before any inheritance can be completed. We search all relevant registries, obtain genealogical reports where necessary and coordinate with authorities to identify all potential heirs. If a potential heir cannot be found, specific legal procedures must be followed before the estate can be distributed — this is particularly important in intestate cases with no surviving close family.
All locations
Select your location for specific information about succession law, local notaries and the heir identification process in your area.
Tell us about your situation and we will explain exactly what applies to you — with no obligation.