For many, the most compelling reason to make a Will is to ensure that your assets pass to the people whom you want to benefit from your estate upon your death.
What is Spanish forced heirship?
Spain operates a system of forced heirship. What this means is that if Spanish law applies to the estate of a deceased person, a certain percentage of the deceased’s assets must be transferred to their children and/or spouse and in some circumstances the parents of the deceased.
Currently, according to Spanish law as it applies in most of Spain, children are entitled to two-thirds of their deceased parent’s estate, a third of which must be distributed equally to all children, another third to at least one if not more children, with the remainder being allocated freely in a Will. Children born out of wedlock also benefit from rights of forced heirship. Children who were adopted by a third party before the death of their biological parent do not benefit from rights of forced heirship in respect of the estate of their late biological parent.
In many common law jurisdictions, such as England and Wales, Scotland, Northern Ireland and the states of the USA, for example, we benefit from what is called freedom of testamentary disposition. That means that a person can leave his or her assets to whomever he or she wishes, without any strict requirement to leave a percentage of the assets to particular family members.
Hence, it is important to be certain that you take the necessary steps to ensure that your estate assets are inherited by the people whom you choose.
Does forced heirship apply to all estates in Spain?
You may avoid Spanish forced heirship rules in one of two ways. You may make a Spanish will in respect of any Spanish assets and declare your wish that the law of your country of nationality applies to the succession of your estate.
Alternatively, you may make a will according to the law of your own nationality and declare that you wish that law to apply to your worldly estate.
Either way, you will be complying with the provisions of the EU Succession Directive. Essentially the Directive provides that you can elect for the law of your nationality to apply to your estate, regardless of where you may be resident at the time of your death.
This means, for example, that you can make a Spanish Will in which you state that you elect for the law of England and Wales to apply to your Spanish estate.
This will mean that you can leave your estate to whomever you wish. Making a Spanish will in respect of Spanish assets is the best way to reduce the administrative load on the beneficiaries of your estate upon your death.
There is less uncertainty, because there is more clarity. No cross border legal issues need to be considered.