SPANISH INHERITANCE LAW

1. Spanish inheritance law for English and Welsh people seeking to have a Will implemented in Spain.

Whilst the amount of work involved in getting an English Will implemented in Spain is considerably more than for getting a Spanish Will implemented in Spain, the Spanish inheritance law that is applicable is exactly the same.

The starting point for Spanish inheritance law is Article 9 of the Spanish Civil Code, and, in particular, paragraph 8, which states, (translated into English), "Succession by reason of death is ruled by the national law of the deceased at the moment of death whatever the nature of the assets and the country in which they are situated. However, the dispositions made in a Will and in the succession agreements made in accordance with the national law of the testator or the alienator at the time they were made will retain their validity even if the succession law that is applicable is different, although the legitimes will have to comply, in each case, with the latter."

What Article 9-8 of the Spanish Civil Code is saying that an English and Welsh person is governed by English succession law.

If there is a change in nationality between the time of making a Will and implementing a Will, the testamentary dispositions made in accordance with the testator's original nationality will continue to be valid, although for the amount that has to be given to the obligatory or forced heirs has to be determined in accordance with the deceased's nationality as at the date of death.

The next thing to consider is whether Article 9 is a reference to the substantive succession law of England and Wales or to the English rules on Conflict of Laws.

Whilst a case can definitely be made for saying that Article 9 refers to the English rules on Conflict of Laws, (which refer the matter back to Spanish law when the assets are immovable property situated in Spain regardless of where the deceased was domiciled, and back to Spanish law for movable property if the deceased was domiciled in Spain), the better case in the opinion of Mr Wagner, based on later judgments of the Spanish Supreme Court, is that there is no renvoir back to Spain, but rather that English succession law is applicable for English and Welsh testators, ie there is freedom of testamentary disposition, (the Dower Act of 1833 resulting in the removal of the last limitation on an English and Welsh testator / testatrix Willing everything they have got to whomsoever they please), subject, today, to the Inheritance (Provision for Family and Dependants) Act 1975, which says that a spouse, former spouses, children and dependants of the deceased have, in certain circumstances, a right to reasonable financial provision.

2. Spanish inheritance law for English and Welsh people dying without having made a Will that is applicable in Spain, ie the deceased has died intestate as to assets situated in Spain.

Again, the starting point is Article 9-8 of the Spanish Civil Code. "Succession by reason of death is ruled by the national law of the deceased at the moment of death whatever the nature of the assets and the country in which they are situated."

Again, The next thing to consider is whether Article 9 is a reference to the substantive succession law of England and Wales or to the English rules on Conflict of Laws.

The relevant English law on intestate succession is to be found in the Administration of Estates Act 1925, and in particular sections 46 and 47. The two sections are complicated, but in essence if there is (i) a surviving spouse and (ii) no surviving children or grandchildren or remoter issue, or surviving parent, or surviving brother or sister or half-brother or half-sister and their issue, then the surviving spouse gets everything.

If, on the other hand, there is a surviving spouse and there are surviving children or remoter issue then the surviving spouse gets all the personal chattels, plus what is called the statutory legacy, (since February 2009 amounting to £250,000.00), plus a life interest in half the remainder. The other half of the remainder is divided equally between the children, (per stirpes, ie if a child of the deceased has died before the deceased but leaving surviving children of their own then the surviving children take equally the deceased parent's share), equally, and the rest when the surviving spouse has died.

If the intestate dies leaving no issue, but there is a surviving spouse and at least one surviving parent or brother or sister or issue of the brother or sister, then the surviving spouse gets all the personal chattels and a legacy worth, since February 2009, £450,000.00 absolutely, plus half the remainder absolutely, and the surviving parents get the rest in equal shares, or, where there are no surviving parents, but there are surviving brothers and sisters, the brothers and sisters get the rest in equal shares, per stirpes.

If the intestate dies leaving surviving children, but no surviving spouse, the surviving children take everything equally, per stirpes.

If the intestate dies leaving no surviving issue and no surviving spouse, but there are surviving parents, then the mother and father inherit the deceased's estate in equal shares.

If the intestate dies leaving no surviving issue, no surviving spouse, and no surviving parent, but there are surviving siblings, then the brothers and sisters take in equal shares, per stirpes.

The rules of intestacy are also subject to the Inheritance (Provision for Family and Dependants) Act 1975.

In conclusion, Spanish inheritance law for English and Welsh people is really English inheritance law.

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