Making a Will in Spain: Why We Chose Our Home Country's Inheritance Law

Our situation: beautiful but legally complex

We are a blended family. Tjitske lives with her husband in Spain, in the dream house they recently bought in the Lorca region. Her husband is the stepfather of her two children. Their daughter lives with her family in the Netherlands, while their son and his wife and children have settled here in Spain.

That spread across two countries and the dynamics of a blended family made one thing clear early on: if something happens to either of them, they want no chaos. No conflict between the people they love, and the surviving partner protected. The solution: a deliberate choice of law in their will.

The European Succession Regulation: the trap most newcomers miss

Many people who move to Spain assume that their home country's will automatically applies, or that their nationality determines which inheritance rules govern their estate. That is not how it works.

Since 2015, the European Succession Regulation (EU Regulation 650/2012) has been in force. The rule is simple but has major consequences: the inheritance law of the country where you have your habitual residence at the time of death applies to your entire estate. If you are officially resident in Spain, Spanish inheritance law applies by default. And that is where it goes wrong for many families from northern Europe.

Why Spanish inheritance law is different

In the Netherlands (and many other northern European countries), the surviving spouse or registered partner is well protected. Under Dutch law, the surviving partner inherits everything, and the children receive their share only when the surviving parent also passes away. The partner can stay in the house and manage the estate. This has been the default since 2003.

In Spain, the system is fundamentally different. Spanish law has the Legítima: a mandatory share that children can claim immediately. In many Spanish regions, children are entitled to two thirds of the estate, and the surviving partner may receive only a usufruct (right of use) over part of the property rather than full ownership. For a blended family, this can create heartbreaking situations. Stepchildren may claim their share immediately, forcing the surviving partner into financial difficulty or even requiring the sale of the family home.

To make matters more complex, the rules differ by Comunidad Autónoma. Catalonia has different rules than Andalucía, and Murcia different again. Spanish inheritance law is not one system but several regional variants. That complexity makes it even more important to make your choice deliberately.

The escape route: choice of law

Fortunately, the same European Succession Regulation provides an exit: the choice of law. You are allowed to specify in your will that the law of your nationality should apply to your estate. As a Dutch citizen in Spain, you can explicitly choose Dutch inheritance law. As a British citizen, you can choose English or Scottish law. As a German citizen, German law. The principle is the same for all EU nationalities (and for many non EU nationalities under the same framework).

That is exactly what we did. And these are the reasons why.

Protection of the surviving partner. We want the person who is left behind to be able to stay in the house without being bought out by the children. Under Dutch law, this is the default. Under Spanish law, it requires complex testamentary clauses with no guarantee they are watertight.

Clarity for the children. Our children live in different countries. By choosing Dutch law, we fall back on a system that is familiar to them and their advisors. This prevents our daughter in the Netherlands and our son in Spain from having to navigate a Spanish settlement process they do not understand.

The blended family. Stepchildren have a different legal position under Spanish law than under Dutch law. We wanted the relationship between Tjitske's husband and her children to be legally clear, with no ambiguity about who inherits what.

Peace of mind. Nothing is worse than grief overshadowed by legal disputes. By arranging everything now, we have taken the sting out of future disagreements.

Why at a Spanish notary, not just in your home country

This was an eye opener for us. A will in your home country is not always sufficient if you own property in Spain. The settlement of real estate in Spain after death goes through the Registro de la Propiedad (the Spanish land registry). If a Spanish will with a clear choice of law is already on file, the registration of the inheritance at the land registry is much faster and cheaper than if a translated and legalised foreign will has to be dug out.

Without a Spanish will, you need sworn translations, an Apostille (legalisation), a certificate of inheritance that must be explained in Spanish, and a Spanish notary who has to interpret the foreign document. That costs time, money, and energy at the moment your partner or children are least equipped to deal with it. A Spanish will with an explicit choice of law for your home country's system combines the best of both worlds: it is ready in the Spanish system, but the content follows the rules you know and trust.

Inheritance tax: a common misunderstanding

The choice of law governs who inherits what (civil law). Taxes (fiscal law) are determined by where you live and where the assets are. Even with a will under Dutch law, you pay Spanish inheritance tax on your Spanish assets. The rates and exemptions differ by Comunidad Autónoma. In Murcia (which includes Lorca), the rates are currently favourable for partners and children, with generous exemptions. In other regions, it may be less advantageous. The choice of law does not protect you from Spanish inheritance tax, but it does determine how the estate is divided, and that is at least as important.

What happens if you do nothing

If you are officially resident in Spain and do not make a choice of law, Spanish inheritance law applies. That can mean your partner must share the house with the children (through the Legítima), that stepchildren are excluded entirely because under Spanish law they are not direct heirs of a stepparent without a will, or that the surviving partner receives only a usufruct instead of full ownership. The cost of a will at a Spanish notary (typically 150 to 300 euro per person) is negligible compared to the financial and emotional damage that a missing will can cause.

Our lesson: put the will at the top of your relocation list

Moving abroad is often seen as an administrative checklist: NIE number, empadronamiento, health insurance, bank account. But the will is often at the bottom, or not on the list at all. We learned that this document may be the single most important part of your relocation file. It is the ultimate proof of care for your partner and your children. When we walked out of the notary with the signed documents, we felt an enormous weight lift from our shoulders. Not because it was pleasant to talk about our own death, but because we knew it was properly arranged. And that is what moving abroad should ultimately be: a well arranged new beginning.

Disclaimer: this is a personal experience story. We are not lawyers. Always consult a specialised advisor for your personal situation.