Belgians with property in Spain do not, in principle, come into contact with Spanish inheritance law. However, when they decide to settle permanently in Spain, Spanish inheritance law does apply. This has significant consequences for the surviving spouse and the testator's available inheritance. Indeed, the rules in Spain are less flexible than the modernised Belgian inheritance law. This article will briefly explain Spanish inheritance law in the absence of a will.
The legal heirs
First come the children and their descendants. The grandchildren, for example, come in place of their predeceased father for his share of the grandfather's estate.
This is followed by the parents and grandparents. Then comes the surviving spouse. After this, the siblings and their children. Finally, the other relatives up to the fourth degree. If there are no heirs, the estate goes to the state.
Spanish inheritance law only applies when you live in Spain.
The reservatory heirs
As in Belgium, there are reservatory heirs in Spain. A reservatory heir enjoys special protection. In Belgium, these are the children and the surviving spouse. A part of the inheritance is reserved for them. This is the reserve.
In Belgium, the children's reserve consists of half of the estate. This means that, in principle, you cannot disinherit your children with more than 50% of your estate.
As a reserve, the surviving spouse has the choice between usufruct on half of all property or usufruct of the family home and its furniture. In addition, the surviving spouse can be additionally protected through, for example, the prenuptial agreement.
In Spain, too, there are reservatory heirs. In the first place, these are the children and their descendants. In the absence of descendants, parents and grandparents are the reservatory heirs. Finally, the surviving spouse also enjoys special protection.
The reserve in Spain
The reserve of the children in Spain actually consists of two-thirds (2/3) of the estate. The first third (la legítima) is divided equally among the children in full ownership. The second third (mejora) can be freely distributed among the children (or their descendants). You can favour a child with this share. The last third (libre disposición) you can freely distribute as you please.
The parents only claim the reserve if there are no descendants. This reserve is one-third if there is a surviving spouse. If there is no surviving spouse, the reserve is two-thirds.
Finally, there is the reserve of the surviving spouse. The surviving spouse, in case there are any descendants, is entitled to one-third, namely the second third of the children, in usufruct (usufructo del tercio de mejora). If there are no descendants but the parents are still alive, the reserve is half the estate, in usufruct. If there are neither ancestors nor descendants, the reserve is second third, in usufruct.
The surviving spouse will also acquire a right of occupancy to the family home. Optionally, one can choose to obtain full ownership of the family home, subject to payment of compensation to the other heirs.
Specific schemes depending on the region
Some autonomous regions may deviate from national inheritance law. For example, Aragon, the Balearic Islands, Catalonia, Galicia, Navarre and part of the Basque Country have specific rules. Below are some examples.
In Catalonia, for example, if inheriting with the children, the surviving spouse is entitled to usufruct of the entire estate. In certain cases, the surviving spouse can opt for 1/4 of the entire estate, together with usufruct on the family home. In addition, in Catalonia there is "el año de viudedad" / “any de plor", or the year of mourning: during the first year after the testator's death, the surviving spouse has the right to maintain the same standard of living as during the marriage. Specifically, this means that the surviving spouse may continue to occupy the family home and receive a certain sum of money from the estate.
Another example. In Ibiza and Formentera, there is basically no reserve for the surviving spouse. Only if there is no will, the surviving spouse inherits half of the estate in usufruct if there are children. If there are no descendants, this is usufruct on two-thirds of the estate. For Mallorca and Menorca, then, different rules apply.
So inheritance law differs from one autonomous region to another.
You can avoid Spanish inheritance law
Spanish inheritance law only applies when you move permanently. If you live in Belgium and have a second residence in Spain, Belgian inheritance law will continue to apply to your worldwide estate.
And even in the scenario where you permanently emigrate, you can avoid the Spanish rules by drawing up a Spanish will. In this will, you then choose the inheritance law of the country of your nationality. This way, you avoid Spanish inheritance law and can dispose of your estate more freely.
A Spanish will allows you to choose the inheritance law of the country of your nationality. Read more about the advantages of a Spanish will.
Inheritance law versus inheritance tax
Note: Inheritance law is not the same as inheritance tax. Unlike inheritance law, you do not have a choice about inheritance tax. It is possible that, regardless of your country of residence, you pay inheritance tax in Flanders as well as in Spain.
Within six months of death, you are required to pay the declaration of estate in Spain indicate.
What about your prenuptial agreement?
In most situations, the provisions in your prenuptial agreement will remain valid. Even if you emigrate to Spain. The protection of the surviving spouse, through, for example, a settlement clause, will therefore continue to apply. Find more information here.
Moving to Spain: different consequences
Moving to Spain does not only have implications on inheritance law. There is also a tax and social law impact. Think about personal income tax, your social rights and inheritance and gift tax.