English and Spanish Inheritance Law: Key Differences for Cross-Border Estates
Many of our clients have connections to Spain — whether through property ownership, family ties or long‑term residence. When estates span both jurisdictions, the differences between English inheritance law and Spanish succession law become particularly important. Understanding these distinctions helps ensure your wishes are carried out smoothly and effectively.
Testamentary Freedom vs. Forced Heirship
English law offers wide testamentary freedom, allowing you to decide how your estate should be distributed.
Spanish law is more prescriptive. Under its forced heirship rules (legítima), a significant portion of the estate must pass to “protected heirs”, usually children.
For clients accustomed to English flexibility, this can feel restrictive — but with the right planning, it can be managed.
Which Law Applies
The EU Succession Regulation (Brussels IV) plays a central role in cross‑border estates.
- In England & Wales, succession is generally governed by the law of domicile for movable assets and the law of the property’s location for land.
- In Spain, Brussels IV means the law of habitual residence applies unless you make a valid choice‑of‑law election.
British nationals can elect English law in their Spanish Will, preserving testamentary freedom and avoiding forced heirship.
The Brussels IV applies to British nationals living in or owning assets in participating EU countries. It allows expats to choose the succession law of their nationality (e.g., English law) to govern their estate instead of the local rules where they live.
Key points for British nationals:
- One-Way Application: The UK opted out of the regulation, so UK courts don’t apply it to succession cases. However, courts and notaries in participating EU countries will recognize a valid choice of English law.
- Active Choice Needed: Brussels IV doesn’t apply automatically. You must explicitly declare in your will that you want your national law to apply.
- Taxation Exclusions: The regulation only governs the legal succession (who gets your assets). It does not override local inheritance taxes or pension rules.
Probate vs. Notarial Procedure
England & Wales rely on a formal probate process, with executors administering the estate.
Spain uses a different approach. Heirs complete an Acceptance of Inheritance before a notary, followed by tax and registration formalities. The process can be slower if the estate relies solely on a UK Will or if the deceased died intestate, so coordinated planning is essential.
Intestacy
Intestacy rules differ significantly:
- In England, the spouse and children receive statutory shares.
- In Spain, a strict hierarchy applies, and the surviving spouse often receives a usufruct (a life interest) rather than outright ownership.
Taxation
Inheritance tax treatment varies sharply between the two jurisdictions.
- The UK applies a national regime with fixed thresholds.
- Spain’s inheritance tax is regional, with reliefs varying widely between autonomous communities.
Inheritance tax in Spain is levied on the beneficiary rather than the estate.
Because regional governments manage the administration and allowances, actual tax bills vary drastically depending on where the deceased lived or where the assets are located.
- Generous Regions: Regions such as Madrid, Andalusia, Canary and the Balearic Islands have drastically reduced the tax burden, allowing close relatives (spouses, children, and parents) to inherit large sums virtually tax-free.
- Stringent Regions: Regions such as Asturias and Catalonia maintain higher tax brackets and offer smaller reductions, meaning significant tax is still owed on large inheritances.
If the deceased lived in Spain, the regional laws of that specific Autonomous Community apply to their worldwide assets.
If the deceased lived outside Spain but held assets in Spain (like a holiday property or Spanish bank account), they are liable for Spanish tax. The rules of the region where the highest-value Spanish assets are located apply. Please note that following European court rulings, non-EU/EEA residents and Spanish expats are generally entitled to the same favourable regional allowances as Spanish residents.
Cross‑border estates may face tax in both countries, making early advice crucial.
How We Support Clients
At The Burnside Partnership, we regularly advise clients with Spanish assets or family connections. We typically recommend:
- Two complementary Wills — one for England & Wales, one for Spain
- A choice‑of‑law clause to ensure English law applies where appropriate
- Joined‑up tax planning to manage exposure in both jurisdictions
- Collaboration with trusted Spanish lawyers to ensure a seamless process
Our aim is always the same: to give you clarity, confidence and peace of mind, wherever your assets are located.
This article is intended as general information only and does not constitute legal advice. Individual circumstances should always be considered.
For information, please contact Yolanda Pérez Berges at yolanda.perez@theburnsidepartnership.com.