How Does Inheritance Work in Spain?

When someone dies owning assets in Spain, those assets must pass through the Spanish inheritance process regardless of the deceased's nationality. Heirs must file a Spanish inheritance tax declaration (even if no tax is actually payable due to allowances) and complete a formal transfer of the assets within the Spanish legal system. This process involves a notary, the Land Registry (for property), and the Spanish Tax Agency.

The process must be initiated within 6 months of the date of death. Failure to meet this deadline results in late payment penalties and interest on the inheritance tax, even if the estate ultimately owes no tax. Many beneficiaries are unaware of this 6-month window, which is one of the most common and costly mistakes in Spanish inheritance administration.

Spanish Forced Heirship (La Legítima)

Spanish inheritance law contains mandatory provisions known as la legítima — forced heirship rules that reserve portions of the estate for certain heirs regardless of the deceased's wishes. Under Spanish law:

  • Children (and in their absence, grandchildren) are entitled to two-thirds of the estate as forced heirs.
  • One-third of the estate (the tercio de libre disposición) can be freely disposed of.
  • The surviving spouse has a usufruct right over one-third of the estate (the tercio de mejora).

These rules can significantly constrain an expat's ability to leave their Spanish property as they wish. For example, an expat who wishes to leave everything to a spouse and exclude children from a previous marriage may find this is not fully possible under Spanish forced heirship. This is precisely why choosing the applicable law under EU Regulation 650/2012 is so important — see below.

EU Regulation 650/2012 and Choosing Your Applicable Law

EU Regulation 650/2012 — the European Succession Regulation — came into force in 2015 and allows EU residents to elect that the law of their nationality governs their entire estate (rather than Spanish law, which would apply by default to Spanish assets). This election is made in the will itself.

This election can be extremely valuable. For example, English law does not have forced heirship provisions — it allows complete testamentary freedom. A British national living in Mijas who makes a Spanish will electing English law can therefore leave their Spanish property exactly as they wish, without being constrained by Spanish forced heirship rules. Your lawyer can advise on whether this election is appropriate for your nationality and personal circumstances.

Spanish Inheritance Tax (Impuesto sobre Sucesiones y Donaciones)

Inheritance tax in Spain is a regional tax and varies significantly between autonomous communities. Andalucía has been particularly progressive in recent years. Since 2019, there is a 99% reduction in inheritance tax for Group I and Group II heirs (spouses, children, grandchildren, and parents) — effectively making most family inheritances tax-free in Andalucía.

However, this near-zero rate applies only to residents of Andalucía. Non-resident heirs may be subject to a less favourable rate (the state national rate). Following recent ECHR and Spanish Supreme Court rulings, non-EU resident heirs are now entitled to apply the regional (Andalucía) allowances if the estate is in Andalucía, but the rules are complex and regularly updated. Always take specialist advice on the inheritance tax position.

Inheriting Property in Spain: The Process

For beneficiaries inheriting a property in Mijas or anywhere on the Costa del Sol, the process typically involves:

  1. Obtaining death certificates (apostilled if foreign) and, if applicable, a Spanish certificate of last wills to confirm whether a Spanish will was registered.
  2. If there is a Spanish will, a notary opens and reads the will; if there is no will, establishing the heirs by means of an acta de declaración de herederos ab intestato.
  3. Preparing the inventory of Spanish assets and obtaining valuations (property nota simple, bank balances, etc.).
  4. Signing the deed of acceptance of inheritance (escritura de aceptación de herencia) before a notary.
  5. Filing the inheritance tax declaration and paying any tax due (within 6 months of death, with possible 6-month extension).
  6. Registering the property in the heirs' names at the Land Registry.

Frequently Asked Questions

Yes, a Spanish lawyer is essential. The inheritance process in Spain involves complex interactions between the notary, the Land Registry, and the Tax Agency, and requires knowledge of Spanish inheritance law, regional tax allowances, and local procedures. A Spanish inheritance lawyer in Mijas will manage the entire process on your behalf, ensuring deadlines are met and the minimum tax is paid lawfully.
Without a Spanish will, the heirs must obtain a certificate from the Spanish Central Registry of Last Wills confirming no will is registered, and then proceed to establish the heirs by means of a notarial declaration of heirs (acta de notoriedad). This process is slower and more expensive than administering an estate with a Spanish will. This is the primary reason why we strongly encourage all expat property owners to make a Spanish will.
Yes. If the estate has debts exceeding its assets, or for other personal reasons, heirs can formally renounce (repudiar) the inheritance before a Spanish notary. Renunciation must be done formally — simply ignoring correspondence is not sufficient and can leave you personally liable for the deceased's Spanish debts. Take legal advice immediately if you are considering disclaiming a Spanish inheritance.