After entry into force of EU Successions Regulation in August 2005 what changes should I know about Successions in Spain?
The EU Successions Regulation 650/2012 shall enter into force on the 17 August 2015. This EU Regulation is not applicable in the United Kingdom, but is applicable in Spain and the rest of the EU to British citizens. Therefore, in case you have assets in the UK and/or in any other EU jurisdiction you need to be well advised of the practical implications this legislative development can have on your succession.
After entry into force of the EU Regulation, being an expatriate in Spain and owning property in Spain, but without a valid will (English or Spanish) covering the assets located in Spain, will be a situation of legal uncertainty and concern for all parties involved.
Until now, the conflict of laws rule in Spain was the application of the national law of the deceased, therefore English law was applicable to the succession of expats even in situations where there was no will. But now that rule has been changed by the EU Regulation to the application of the law of the last habitual residence, that is, Spanish law in the case of an expat.
The application of Spanish intestate laws could lead to unexpected results. The spouse only gets a life interest on a third of the estate and the descendants receive all of the estate, in full property. This rule can be highly detrimental to the surviving spouse’s interests, especially when there are descendants from a previous marriage of the decedent or family relations have deteriorated over time.
Avoiding the application of Spanish law is easy: you need to draft a last will and testament with the assistance of a Spanish lawyer including a clause choosing the law of your nationality as the law applicable to your succession. In this way, an English expat in Spain can dispose freely of his assets in Spain according to English law and without regard to Spanish succession laws.
A person with multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice. But, of course, only laws which favour the freedom of the testator to dispose of his/her assets are reasonable choices in this context. The choice of English law is one of the most practical and rational possibilities.
The choice of the national law of the testator is also useful to avoid the application of the rules on forced succession (legítimas) applicable in Spanish law, which diminish the testator’s freedom to dispose of his/her assets to only one third of the estate. These strict Spanish rules are not applicable when English law has been chosen as the law applicable to the last will and testament in conformity with the EU Regulation. Renvoi from English law to Spanish law (as lex domicilii of the decedent or lex situs of the property) is not possible where there has been a choice of the applicable law in the last will and testament.
In case you already have made a will in Spain where you have disposed of your Spanish assets according to English law as personal law of the testator, as it is quite common to do, you do not need to make a new one. The EU Regulation contains transitional provisions to avoid the need for a rush to the lawyer or the Notary in order to make a new will.
But if until now you have only made a will in England, the situation is a bit more complex. First, you need to check the wording of your English will to see if it covers your universal succession (that is, all your assets whatever their nature and wherever located) or is limited to your assets in England. If limited to your assets in England, you are intestate in Spain or any other EU jurisdiction where you may have assets. If it covers your universal succession and the will is drafted in accordance with English law, then the EU Regulation presumes that English law has been chosen as the law applicable to your succession. Anyway, your English will is not automatically enforceable in Spain, since before that, it should obtain the grant of probate from English Courts as it has been the case until now.
After 17 August 2015, if you are an expat in Spain the law applicable to your succession from the point of view of Spanish authorities or from that of any other EU jurisdiction is Spanish law, unless you make a will with an express choice of English law. Therefore, after 17 August 2015, just making a universal will in England in accordance with English law would not be enough to presume you have chosen English law as the law applicable to your succession in Spain; the choice must have been made expressly in the will or should be clearly demonstrated by the terms of such a disposition.
The dual system (one will in the UK for assets there and another will in Spain for assets here) is still the best approach for most cases (provided there is no contradiction between the two wills and both wills are kept regularly updated to take into account all the relevant new events in relation to your assets or your relatives). Both wills should clearly indicate their territorial scope of application to avoid any conflict between them. Also particular attention should be given to the drafting of revocation or other clauses that might have an impact on the validity and interpretation of both testaments.
Autor: Miguel Checa Martínez, Profesor Titular de Derecho Internacional Privado