According to the European Succession Regulation, the deceased is generally inherited in accordance with the law of the country in which the deceased had their last habitual residence. This applies regardless of nationality. German nationals who live permanently in Spain, i.e. who have their habitual residence there, are therefore generally inherited in accordance with Spanish inheritance law rather than German inheritance law. Many Germans who spend their retirement in Spain do not realise this. However, it is possible and usually advisable for German nationals to include in their will a Choice of law in favour of German inheritance law.
German nationals living in Spain are strongly advised to seek advice with regard to their last will and testament. German nationals who live permanently in Spain often wish to apply German inheritance law because they are generally more familiar with the German legal system. In many cases, the children of parents living in Spain live in Germany. In most cases, the heirs are also more familiar with German inheritance law than with Spanish inheritance law. In addition to this personally perceived stronger connection to the German legal system, the generally greater flexibility of German inheritance law compared to Spanish inheritance law can also speak in favour of a choice of law in favour of German law. This applies in particular with regard to the „Berlin Testament“, i.e. a spouse's will in which the spouses appoint each other as sole heirs and the children as last heirs after the last deceased. Under Spanish law, such a joint will, which even binds the spouses under German law, is not permitted. The appointment of the spouse as sole heir and the relegation of the children or - in the case of childless couples - the relegation of the parents to the compulsory portion, which is possible under German inheritance law, is also not possible to this extent under Spanish law. In practice, German nationals will only want Spanish inheritance law to apply in rare cases. The fact that Spanish inheritance law is nevertheless applied if mistakes were made when drafting the will and the option of a choice of law in favour of German inheritance law was not used is a surprise for many of those affected, with far-reaching consequences.
We will be happy to advise you on the drafting of wills with reference to Spain. We will discuss the various structuring options with you in detail, also taking into account tax aspects to minimise double taxation in Spain and Germany. (With regard to inheritance tax law, there is no double taxation agreement between Spain and Germany). We draft wills for you that take into account your family situation, your centre of life abroad and the fact that you have assets in different countries. The consideration is often not limited to two countries. If your estate assets are not only located in Germany and Spain, but also in other countries, this must be taken into account when drafting your will. Our team includes experienced German and Spanish lawyers specialising in international, Spanish and German inheritance law. We have excellent contacts with tax advisors and notaries in Spain, with whom we co-operate on a regular basis.