Spanish forced heirship: key risks for British nationals with assets in Spain

British nationals who are resident in Spain, or who own Spanish assets, may find that Spanish succession law applies by default unless they have appropriate Will planning and a valid choice of law provision in place.

The principal risk is that Spanish forced heirship rules may override testamentary intentions and restrict how the estate can pass, particularly where the intention is to benefit a spouse or distribute assets unequally among children.

Under Spanish civil law, the legítima reserves part of an estate for close family members, most commonly children, which can significantly limit testamentary freedom if no effective planning has been undertaken.

The key issue is not simply the existence of forced heirship, but whether the individual has taken the right steps to preserve flexibility and align Spanish succession outcomes with their wider estate planning objectives.

Why this matters in practice

Spanish forced heirship is not uniform. While the Spanish Civil Code applies in much of the country, certain regions operate their own succession regimes, meaning the extent of testamentary freedom can vary materially depending on the applicable civil law system.

Under the national regime, the main practical points for clients are as follows:

• Two-thirds reserved portion: Under the Spanish Civil Code, where there are children or other descendants, two-thirds of the estate is generally reserved for them.

• Internal division of the reserved estate: One-third must usually be divided equally among children, while a further third may be allocated more flexibly among descendants through the mejora.

• Free disposal is limited: Only the remaining third can generally be left freely to a spouse, partner or any other beneficiary.

• Spousal protection may be limited: Where there are children, the surviving spouse may receive only a life interest in part of the estate rather than outright ownership.

• Ascendants may inherit by right: If there are no descendants, parents or other ascendants may become entitled to a protected share.

Some regional regimes are more flexible, but the position is highly fact-sensitive and should not be assumed without jurisdiction-specific advice. By way of illustration: Catalonia: the forced share for children is materially lower than under the national regime, at 25% of the estate.

The key message is that succession outcomes can differ substantially depending on residence, nationality, the terms of the Will, and the regional civil law regime that applies.

Practical steps for British nationals

• A British national may, in principle, elect for the law of their nationality to govern their succession under EU Regulation 650/2012 (Brussels IV), rather than allowing Spanish law to apply by default on the basis of habitual residence.

• In practice, this is commonly addressed through a Spanish Will containing an express choice of law clause and coordinated carefully with any existing UK Will.

• Existing UK and Spanish Wills should be reviewed regularly to ensure they remain consistent, effective across both jurisdictions, and aligned with any changes in residence, family circumstances or tax exposure.

• Specialist cross-border legal and tax advice remains essential, both because succession law is complex and because Spanish inheritance tax and regional rules may materially affect the overall outcome.

Disclaimer: This note is provided for general information only and does not constitute legal or tax advice. Spanish succession law is complex, region-specific and fact-sensitive, and professional advice should always be taken before any action is taken.

For tailored advice on Spanish succession planning, British nationals with Spanish assets should seek specialist cross-border legal and tax support at an early stage.

Please contact Yolanda Perez Berges at yolanda.perez@theburnsidepartnership.com for more information.