Which country's law decides who inherits from you in Spain?

Key rules

• Default law: The law of the country where you were habitually resident at death governs your whole estate, unless you chose your nationality's law in your will.
• Residence permit: A residence permit alone does not prove where you live for inheritance purposes.
• Choice of law: You can choose only the law of a country whose nationality you hold, and it covers the whole estate.
• Home-country will: Your home country may not recognise your choice, so ask a lawyer whether to keep a separate will there.

The short answer

The law of the country where you were habitually resident at death governs your whole estate. If you live in Spain, that is Spanish law by default, for assets in Spain and abroad. You can instead choose the law of your nationality in your will. That choice has limits and needs careful drafting.

Spain applies this rule to everyone, whatever their nationality. That includes British, Irish, Danish and US citizens. Tax is separate and follows its own rules.

How "habitual residence" is judged

There is no fixed test, such as a number of days. A notary or court looks at your whole life in the years before death and at the time of death. It asks where the centre of your life was. It weighs:

• how long and how regularly you were in Spain, and why
• where your family and social life are
• where your main assets are
• what you intended

A residence permit does not settle it. Residence is a question of fact. Useful evidence includes the padrón, a certificate of residence, proof of tax residence, and property and healthcare ties in Spain.

If you work abroad but keep a close, stable link with your home country, such as family or a main home there, your habitual residence may still be in that country. In a hard case, your nationality or the location of your main assets can act as a pointer.

In rare cases, if you were clearly more closely connected with another country, that country's law applies instead.

Choosing your nationality's law

You can choose the law of a country whose nationality you hold, in your will. If you have several nationalities, you can choose any of them. Some points to know:

• The choice must be express, or clearly shown by the wording of the will.
• It covers your whole estate. You cannot choose it for only some assets.
• You cannot choose a law of a country you are not a national of.
• A Spanish court can refuse an effect that is manifestly against Spanish public policy.

Spanish notaries normally include the clause if you ask. A typical clause states your nationality, says you live in Spain, and says you choose that national law for your whole succession. Say that it applies to the whole estate.

Is choosing wise?

Keep the default if you plan to stay in Spain and are happy with Spanish law applying to everything. Choose your national law if you want your home country's rules, for example on who must inherit, to apply.

Courts in your home country may not recognise your choice. For that reason, a separate home-country will is often kept alongside the Spanish one. Ask a cross-border succession lawyer whether you need both. This matters most for US nationals, where choosing the law of a particular state is uncertain.

Denmark and the UK are not bound by the EU rules, and Ireland is not either. Spain still applies them to Danish, British and Irish nationals who live in Spain.

The decision, documents, checklist and questions below help you act on this.

Choosing between options

Should you leave the law of your estate to the default rule, or choose your nationality's law in your will?

• Keep the default: You are happy for the law of the country where you live at death to apply to your whole estate. If you live in Spain, that is Spanish law. You then need to do nothing in your will.

• Choose your nationality's law: You want the law of your own country, such as English law for a British national, to govern your whole estate instead. You state this clearly in your will, and the notary normally adds the clause on request.

If you want your national law to apply, say so expressly in your will. The choice covers the whole estate and only your own nationality, and a court can set aside an effect that is manifestly against Spanish public policy. If you have no wish to change the default, leave it.

Documents you need

• Certificate of residence showing where you live, to help show your habitual residence. Optional, but useful if the notary or a court asks.

• Padrón certificate from your town hall. The padrón is the local register of residents, and it shows you live in Spain. Optional supporting proof.

• Proof of tax residence, such as a tax residence certificate, showing which country you pay tax in. Optional supporting proof.

Checklist

• List where you actually live, where your family lives and where your main assets are.

• Confirm you are on the padrón and that your tax residence matches where you really live.

• Check whether you kept a close, stable link with your home country, such as family or a main home there. Working abroad does not by itself move your habitual residence.

• Decide whether Spanish law applying to your whole estate suits you, or whether you want to choose your nationality's law.

Frequently asked questions

Does a Spanish residence permit prove I live in Spain for inheritance purposes?

No, a residence permit on its own does not decide where you are habitually resident for inheritance purposes. Residence is a question of fact, so a notary or court looks at your whole life. That means where your family lives, where your main assets are, your tax residence and your ties to the place.

Does Spain apply these rules to me if I am British, Irish, Danish or American?

Yes, Spanish notaries and courts apply these rules whatever your nationality, as long as you are habitually resident in Spain at death. Your home country may not be bound by them. For that reason it can help to get advice on how your home courts would treat your estate.

Will my home country recognise my choice of national law in a Spanish will?

Not necessarily: Spanish notaries and courts accept the choice, but the courts of your home country may not. Many people keep a separate home-country will alongside the Spanish one.

Can I choose my national law for only some of my assets?

No, a choice of national law covers your whole estate, not just some assets. If you have more than one nationality, you can pick any one of them. The choice must be clear from the will itself.