María del Mar Hernández Cortés

Abogada, Lawyer, Rechtsanwältin

            THE EUROPEAN SUCCESSION REGULATION

The European Regulation 650/2012 is applicable to all  cross border estates of people who has passed away after the 17th August 2.015 and stablishes

According to this European Regulation the deceased can choose the national law which will be applicable to his international estate.

TACIT OR EXPRESS CHOICE OF LAW

This choice of law can be expressly included in the will drown up after the 17th August 2.015, but it´s also valid and effective if this selection was made in a will drafted before that date.

However, it´s also possible to make a tacit choice of the applicable law, if for example the testor distributes the estate in the will according to his national succession law, includs legal concepts or options from this national law or refers it in some way. Anyway this option is complicated although i´s legally permited.

The foreigners who habitually reside in Spain are the ones who according to the EU Succession Regulation 650/2012 have the chance to select the law to be applied to their cross border estate, being able to decide between the law of their nationality or the one of their habitual residence, in this case Spain.

The most remarkable thing here is that if the foreigners residing here don´t make any kind of choice of applicable succession law, the Spanish law will be applied to their estates after they pass away, what can bring to unpleasant and unexpected surprises.

It´s also important to clarify that it is also applicable to foreigners residing here who are nationals of third states out of the EU.

There are many aspects of the Spanish Succession Law that we could stress to explain the trascendence of this choice, but we´ll focus on the “legítimas”: the Spanish law provides for the minimum inheritance of the children, parents and widow, which is a percentage of the whole estate, not as a credit on the economic value of the estate, but as a real  percentage of participation in the ownership of every asset in the  estate, what brings to co-ownership and problems arising from it if the estate has not been properly planned.

For example, if a British citizen residing in Estepona who passes away leaving a partner and three children, owned an apartment in Estepona and another one in Malaga , but did not make a choice of law, the Spanish Law will be applicable  to his estate, the children have the right to receive a nimimum of 2/3 of the whole estate and altough the deceased had drafted a will leaving more than permitted by the Spanish law to his partner, it won´t be possible because the children have the right to receive their minimum part of 2/3 called “legítima”.

If the deceased were German instead of British, as according to the German Succession Law this minimum for the children is a right to claim the value of their participation in the estate, but not a real percentage in the ownership of the assets, then the consequences would be totally different.

Many European Countries regulate different kinds of “legítimas” , understood as forced shares or limitations to the freedom to dispose in the will, in different ways  and percentages and with very diverse legal consequences, but it´s only a small sample of a considerable number of aspects and questions regulated in every national legal succession system (as previous donations while living, appointments of heirs, etc) which need to be considered before making the election of law to avoid further problems in the acceptance and distribution of the inheritance.

As before explained, the choice of law can be express or tacit, but it´s highly recommendable to do it expressly in a clear and unquestinable way because otherwise, the Spanish law will be applicable to the foreigners residing here, who don´t usually know our legal system and their beneficiaries either.

María del Mar Hernández Cortés is a University Expert with a long professional experience, who can support you in any aspect of your estate planning and available for meetings in her offices in Estepona, Malaga and Marbella, as well as on the telephone: +00 34 952 80 44 64, online through Skype: maria-bhabogados oder Email: maria@balmaseda-abogados.com.