Forum Shopping in Succession Law: How To Validly Choose the Law Applicable to Your Succession for Both Europeans Residing in Spain & Spaniards From Different Regions of Spain

EU Regulation 650/2012, applicable from August 2015, provides that the inheritance of a European citizen residing in another EU country is governed by the law of their last residence, rather than their national law. For example, let’s consider the case of Olaf, a Swede who retires and moves to Spain. Unless he makes an explicit choice before his death, Spanish law would apply to Olaf, rather than Swedish law. However, Spanish law is more restrictive regarding freedom of testation than other European laws. Continuing with the example, under Spanish law, Olaf would be legally obligated to leave two-thirds of his estate to his children, whereas under Swedish law, he would only be required to leave them half.

To complicate matters further, Spain has a general system that applies in most regions, and specific systems in the regions of Aragon, the Balearic Islands, Catalonia, Galicia, the Basque Country, and Navarre. In other words, it wouldn’t be the same if our friend Olaf had chosen the sunny life of Andalusia or the gastronomic paradise of the Basque Country.

To prevent these situations, EU Regulation 650/2012 established an escape clause, allowing testators to choose in their will to retain their own national law and for the law of their last residence not to apply. Therefore, the first piece of advice is this: if you are residing in a country other than your own, consult an expert about that country’s inheritance laws to see if they are preferable to your own or if you would prefer to expressly state your choice of national law in your will. And, if your country of residence is Spain, be aware of the different regional laws governing inheritance.

And can Spaniards also make this choice? Spaniards will be subject to their civil domicile. If, for example, Xabi was born in the Basque Country but moves to Madrid and wants to maintain his inheritance regime, which gives the testator more freedom than the general one, he must go to the Madrid Civil Registry within ten years of living in Madrid and expressly state his wish to retain his civil domicile. If he doesn’t do so, after ten years he will acquire the civil domicile of his place of residence, and the law applicable to his inheritance will automatically change. Therefore, a second piece of advice: Spaniards also need to be familiar with the legal systems of the regions where they live and consider whether they prefer them if they move to another region, lest their heirs find themselves unable to carry out their last wishes.