Losing a loved one is never easy, but when someone passes away in Spain – especially if they’re a foreign national – it can be particularly overwhelming for the family. Understanding what happens next and how the legal process works is key to avoiding unnecessary complications or delays.
Whether you’re a British national living in Spain, own property there, or are dealing with the loss of someone who did, this guide outlines what steps must be taken and what legal considerations are involved.
When someone dies in Spain, the first step is to obtain a medical death certificate. This is typically issued by a doctor and confirms the cause of death. Once this is obtained, the death must be registered at the local Civil Registry (Registro Civil) within 24 hours. The family or a representative must take the medical certificate and identification documents of the deceased to the registry office to receive an official death certificate.
Funeral arrangements can then be made, either locally or for repatriation. Most funeral homes in Spain offer packages that include transport, paperwork, and liaison with authorities, and many are experienced in dealing with international families.
If the deceased had a will – especially one that was signed before a Spanish notary – the process of settling the estate becomes much more straightforward. If not, the estate must be handled according to intestate succession laws, which can be lengthy and more difficult to navigate.
Spanish inheritance law is based on a principle called “forced heirship.” This means that, by default, a portion of a person’s estate must go to close relatives, primarily their children or spouse. The estate is commonly divided into three parts:
For many non-residents or expatriates, these rules can come as a surprise. However, under European regulations, foreign nationals living in Spain or owning property there can choose the inheritance law of their country of nationality instead of Spanish law. To do this, they must clearly state their choice in a valid will. Without this election, Spanish law will automatically apply to their estate – potentially conflicting with their wishes or expectations.
If someone passes away in Spain with a properly drafted Spanish will, the process of distributing the estate is far more efficient. The will is usually recorded in the Spanish Registry of Wills and can be accessed by the notary responsible for executing the estate.
Having a separate Spanish will – in addition to a UK will – is highly advisable for anyone with property or assets in Spain. It ensures the Spanish estate is handled quickly, in accordance with local procedures, and avoids costly translations or legal arguments between jurisdictions.
If a person dies intestate (without a valid will), Spanish intestacy laws apply. This typically means that the surviving spouse is granted a right to use one-third of the estate (known as a usufruct), while the children inherit the remainder in equal shares.
If there are no children, the estate passes to other family members in a defined order, including parents or siblings. This process can take much longer, may involve proving family relationships with documentation, and could result in distributions that differ greatly from what the deceased may have wanted.
This is why making a will is such a critical part of inheritance planning – particularly for non-residents who have different expectations based on their home country’s legal system.
Inheritance tax in Spain is paid by the beneficiary, not by the estate. The amount depends on a number of factors, including the value of the inheritance, the relationship between the deceased and the heir, and the heir’s existing wealth. Spain also allows each autonomous community (region) to set its own tax rules, reductions and exemptions – which can vary greatly.
In some regions, close relatives (such as children or spouses) receive significant tax reliefs, while in others the tax burden is higher. Non-residents inheriting property in Spain must pay tax only on the Spanish-based assets. However, they may also have to report the inheritance in their country of residence, so international tax advice is essential in some cases.
It’s worth noting that heirs are often expected to pay inheritance tax before taking legal possession of the property or funds. This can create cash flow issues if there are no liquid assets available.
Gifting a Property in Spain – is it worth it?
Gifting property during your lifetime is sometimes considered as a way to reduce the value of your estate and lower inheritance tax for your heirs. However, gift tax in Spain is generally similar to inheritance tax – and in some cases can be higher.
Furthermore, gifting property can trigger capital gains tax based on the increase in the property’s value since it was purchased. The recipient may also have to pay the Plusvalía Municipal tax, which is based on the increase in the value of the land over time. So, while gifting may make sense in certain circumstances, it should not be done without professional advice. Each case is different, and careful financial and legal planning is needed to ensure it doesn’t result in a larger tax bill or loss of control over the asset.
Can I Leave My Spanish Property to Anyone I Want?
Under Spanish law, you are not completely free to distribute your estate however you wish – unless you take action during your lifetime. The forced heirship rules mean that at least two-thirds of your estate must be left to your children. However, if you make a will and elect for UK law to apply, you are allowed full freedom of testamentary disposition. This means you could leave your Spanish property to a partner, friend, charity, or anyone else – but only if this choice is legally recorded in your will, and the document includes the correct clause naming UK law as the applicable legal system. Many British nationals mistakenly believe their UK will automatically overrides Spanish law, but this is not the case unless the will has been properly drafted and legally recognised in Spain.
Once a person has died and the estate enters the inheritance process, heirs will need to provide various documents including:
Without guidance, compiling these documents can be overwhelming, especially for heirs living outside Spain. For this reason, appointing a legal representative or solicitor in Spain is strongly recommended. They can handle the formalities, communicate with the notary, and ensure tax and legal obligations are met on time.
If you own property or assets in Spain, planning ahead can save your family a great deal of stress, time and money.
At Heniam, we specialise in inheritance and estate planning for British nationals with assets in Spain. Whether you need help drafting a Spanish will, electing UK law, or navigating the probate process, we’re here to ensure your wishes are respected and your loved ones are protected.
Contact us today for a free consultation and practical advice on planning your Spanish estate the right way.