Statutory Inheritance with Foreign Heirs: How Is It Managed in Spain?

In our previous article, we analyzed in detail how an estate is distributed in Spain and debunked the myth of “absolute freedom” when making a will through the Rule of Thirds. However, in an increasingly globalized world, a very frequent question arises in law firms: What happens to the statutory legal share (the legítima) when foreign citizens or residents are involved?

International and cross-border inheritances usually generate a great deal of confusion. Below, we analyze how Spanish legislation applies, what advantages foreigners have regarding the free disposal of their assets, and which tax and legal procedures are mandatory.

Nationality vs. Habitual Residence: The Key Rule That Changes Everything

Until 2015, determining which national law regulated a foreigner’s inheritance in Spain was a complex process. Today, thanks to EU Regulation 650/2012, there is a very clear general rule: the succession as a whole is governed by the law of the country where the deceased had their habitual residence at the time of death, regardless of the nationality of the heirs or where the assets are located.

This establishes two main scenarios:

A foreigner who dies while residing legally in Spain: If a foreign citizen has established their habitual residence here, Spanish succession laws will automatically apply (the common Civil Code or regional laws, such as those of Catalonia, Galicia, or the Balearic Islands). This means that, by default, they will be obliged to respect the Spanish statutory shares and thirds for their forced heirs, even if those heirs live abroad.
The “wildcard” of Professio Juris (Choice of Law): To avoid being forced to apply the strict Spanish system of thirds, the law allows a person to explicitly choose in their will that their succession be governed by the law of their nationality instead of their residence. This is highly common and advantageous for citizens coming from countries where forced heirship does not exist, and there is complete freedom of testation, such as the United Kingdom or the United States.

💡 In short: If you are a foreigner living in Spain and you wish to leave your assets freely to whomever you want without the restrictions of Spanish law, you must make a will in Spain explicitly stating that you choose the law of your nationality to govern your estate.

Quick Reminder: Rights of Forced Heirs Under Spanish Law

If a deceased foreigner did not make a choice of law in their will, the standard Spanish rules apply, protecting the minimum statutory rights of the forced heirs:

Children and descendants: They are first in line and are entitled to two-thirds of the inheritance (one-third as a strict legal share split equally, and one-third as a betterment share distributed at the testator’s discretion).
Parents and ascendants: If there are no children or descendants, parents are entitled to half the value of the inheritance (or one-third if they inherit alongside the surviving spouse).
Surviving spouse: Holds the right to the statutory usufruct (life interest) of a portion of the estate, which varies depending on whether they inherit alongside children (one-third) or parents (half).

Note: Remember that the statutory share is a right strongly protected by law. Disinheritance is only possible in extreme cases strictly established by law (such as physical mistreatment, threats, or attempted homicide). Furthermore, heirs have a general five-year period to claim their statutory share, counting from the acceptance of the inheritance or from the moment they become aware of the violation of their rights.

Mandatory Procedures for Foreign Heirs

For a relative residing outside Spain or holding a foreign nationality to legally accept and receive their inherited assets, the law strictly requires the completion of several administrative steps:

Obtaining a NIE (Foreigner Identification Number): This is an indispensable requirement. No foreign heir can sign an inheritance deed, register assets under their name, or settle taxes in Spain without a NIE number.
International Power of Attorney: If the heir cannot or does not wish to travel to Spain for these procedures, they can grant a power of attorney before a Spanish Consulate in their home country or before a foreign notary (properly apostilled or legalized) so that a lawyer can act on their behalf.
Gathering Essential Documentation: The death certificate, the certificate of last wills and testaments (to verify if a will exists in Spain), and an authorized copy of the will or the legal declaration of heirs will be required. In international successions, this usually requires sworn translation and legalization services.

The Tax Maze: How Are Foreign Heirs Taxed?

The taxation of international inheritances is a highly delicate matter due to the risk of double taxation. The factor that determines how the Inheritance and Gift Tax (ISD) is calculated is the tax residence of the heir, not their nationality:

Non-resident heir in Spain: Taxed by real obligation (obligación real). This means the Spanish State will only levy taxes on assets and rights that are physically located within Spanish territory (e.g., a property on the Costa Blanca or a bank account in Valencia).
Resident heir in Spain: Taxed by personal obligation (obligación personal). They must declare and pay taxes in Spain for all assets received, regardless of where they are located in the world (worldwide taxation).

⚠️ Critical Tax Deadline: The deadline to settle and pay Inheritance Tax in Spain is 6 months from the date of death. It is possible to request an additional 6-month extension, but this must be processed within the first five months of the initial period to avoid penalties and surcharges from the tax authorities.

Conclusion

International inheritances add layers of complexity to an already delicate process. Correctly determining the habitual residence of the deceased, deciding whether it is convenient to choose the national law in a will, or managing NIEs and taxes to avoid penalties requires meticulous legal planning.

Having the support of expert lawyers in Succession Law and International Tax Planning ensures that family assets are transferred safely, in full compliance with the law, and while minimizing the tax burden on the heirs.

Are you a foreigner with assets in Spain or about to receive an international inheritance?

Civil and tax legislation in an international context can be confusing, and a drafting error or a missed deadline can be very costly for your family.

At FIRMALEX, we are specialized attorneys in International Succession Law. We take care of the entire process—from obtaining the NIE and drafting powers of attorney to the optimal settlement of your taxes—protecting your peace of mind at all times.

Further information

This article is part of our service Inheritance in Spain. Visit this section where you will find all the useful information on this topic, including a complete guide on Inheritance in Spain with a non-resident, expat or foreigner.

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