If you own property in Andalusia, inheritance planning matters. Spain has “forced heirship” rules under its Civil Code, but EU cross border rules can let many foreign nationals choose the law of their nationality in a Spanish will. This can change who inherits and on what terms.
This article is general information, not legal or tax advice. For any real case, use a Spanish lawyer and (ideally) a tax adviser.
1. The Spanish inheritance system in plain terms
Forced heirship and the “three thirds”
Under Spain’s Civil Code, where there are children or other descendants, the heirs’ protected share is structured as:
- Two thirds reserved for descendants (the “legítima”)
- Within that, one part can be allocated as “mejora” to favour one or more descendants
- The remaining third is free disposal
This is the legal basis behind the common explanation of “three thirds” (strict legitime, mejora, free disposal). In practice, families often need a lawyer to apply these rules to a specific estate and family structure.
Rights of the surviving spouse
In the Civil Code framework (the default in Andalusia), the surviving spouse’s protected position is typically a usufruct right (a right to use and benefit from assets), not automatic full ownership:
- If there are descendants: usufruct of the “mejora” third
- If there are ascendants but no descendants: usufruct of half the inheritance
- If there are no descendants and no ascendants: usufruct of two thirds
This matters because children (or other heirs) may hold bare ownership while the spouse holds usufruct, which can affect decisions to sell, rent, or distribute income.
2. Which law applies to foreign residents and owners
Spain applies EU Regulation 650/2012 to determine which country’s succession law governs cross border estates.
Default rule: habitual residence
By default, the law of the deceased’s habitual residence at the time of death governs the succession as a whole.
Choice of law: nationality
A person can choose, in a valid disposition upon death (for example, a will), the law of their nationality to govern their succession as a whole.
What this means in practice for foreign owners
- If you are habitually resident in Spain and do nothing, Spanish succession law is the default.
- If you make a will choosing your nationality law, the succession should follow that chosen law, subject to formal validity and other safeguards in the Regulation.
- This applies even if your nationality law is from a non-EU state. The Regulation has “universal application”.
Important nuance: choosing your nationality law does not automatically mean “full freedom”. It means you get whatever your nationality law provides. For example, some national systems also protect spouses or children in different ways.
3. Key concepts you need to know
Forced heirs
In the Civil Code model, descendants are protected by the two-thirds legitime structure. The spouse is protected through usufruct rights.
Usufruct
Usufruct is a real right to use and enjoy an asset (live in it, rent it out and receive income), while other heirs may hold bare ownership. The Civil Code explicitly frames the spouse’s protection this way in the scenarios above.
Succession law vs tax
Succession law answers “who inherits and what rights they get”. Tax law answers “what must be declared and paid”. Even if a non-Spanish law governs the succession, Spanish tax can still apply to Spanish-located assets.st regions, including Andalusia, treat spouses, children and parents far more kindly than unrelated heirs.
4. Wills in Spain for foreign owners
Why a Spanish will is usually recommended
You are not required to have a Spanish will, but for Spanish assets it often makes administration easier because it can:
- Be signed in the form Spanish notaries and registries expect
- Include an explicit choice of law under EU Regulation 650/2012 when appropriate
- Be traceable through Spain’s wills registry system (so heirs can locate it)
Avoid hard promises like “this will always be faster”. Inheritance timelines vary by family situation, country of death, and documentation.
Coordinating multiple wills
Many owners use:
- A Spain-only will for Spanish assets
- A separate will for home-country assets
This can work, but the wording must be coordinated so one will does not unintentionally revoke the other. This is drafting work for a cross border specialist.
5. Taxes and fees on inherited property
Inheritance tax exists, even if the bill is low
Spain taxes inheritances through ISD (Impuesto sobre Sucesiones y Donaciones). How much is due depends heavily on:
- Relationship to the deceased
- Values and allowances
- Regional rules (Andalusia has its own)
For Andalusia, the official position is that enhanced regional measures apply for deaths from 1 January 2022 onwards, including a large reduction for Groups I and II and other relief mechanisms in qualifying cases.
Because tax rules and interpretations can change, and because details depend on residency and asset location, keep tax figures in your article aligned to official Andalusian guidance and current law, not blog summaries.
Deadlines (key risk area)
Spain’s standard inheritance tax deadline is 6 months from the date of death, with the possibility to request an extension within the legally set window.
Penalties and interest can apply if deadlines are missed, even where the underlying regional relief makes the tax due low.
6. Steps for inheriting property in Spain
This is usually an administrative and notarial process. Exact steps vary, but common stages include:
- Collect documents (death certificate, IDs, wills, property documents, bank certificates)
- Confirm which law applies (default habitual residence or an explicit choice of nationality law)
- Prepare the notarial deed of acceptance (Escritura de Aceptación de Herencia)
- File inheritance tax and obtain proof of filing/payment (needed for registration steps in practice)
- Register the change of ownership at the Land Registry
If documents are issued outside Spain, apostille and sworn translation requirements are common, but the exact needs depend on the country and document type.registries so that the change of ownership is official. Only after this can the heirs sell or mortgage the property.
7. Practical points for foreign residents and heirs
A few practical realities we see repeatedly with foreign-owned property:
Deadlines and paperwork cause more problems than tax: In Andalusia, close-family tax outcomes are often softer than people fear, but missed filings can still create cost and delay.
Usufruct can block decisions: A spouse’s usufruct can complicate selling or renting if the family has not agreed a plan.
The “choice of law” must be explicit: Regulation 650/2012 requires an express choice (or one demonstrated by the will’s terms).
Final thoughts
For most foreign property owners in Andalusia, the safest planning sequence is:
- Put a Spanish will in place that is coordinated with your home-country will
- Decide, with a lawyer, whether choosing your nationality law helps your goals (and what your nationality law actually does)
- Make sure your family understands how spouse usufruct and children’s rights can interact under the Civil Code default
