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Trust Planning — Case Study

Discretionary Beneficiary AND Life Tenant: How Spain Taxes a Dual Trust Interest

An anonymised educational case study examining how Spain taxes a UK national who holds simultaneously a discretionary beneficial interest and a life tenancy in two trusts settled by the same settlor — producing two entirely different Spanish tax treatments for the same person.

By Jacob Salama · Colegiado nº 11.294 ICAMálaga · Updated May 2026 · 20 min read
Confidentiality Notice This case study is based on a real matter handled by SALAMA LEGAL SLP. All names — including the client ("Ms. Harrison"), the settlor ("Mrs. Falcon"), the trust names ("Falcon 1990 Settlement" and "Falcon 1992 Settlement"), and the trustee — have been changed and all identifying details modified to preserve strict client confidentiality. The dual beneficial interest structure, the Spanish tax analysis, and the pre-arrival planning options described reflect the actual issues encountered in practice. This article does not constitute legal or tax advice. See full disclaimer at the end.

Spain does not have trust law. That statement, bald and familiar to any practitioner in this field, contains within it a problem of extraordinary subtlety: when a UK national who holds beneficial interests in two trusts considers moving to Spain, the absence of a Spanish trust concept does not mean the trusts are ignored. It means the AEAT must characterise each beneficial interest through the lens of Spanish civil law — and the result of that characterisation depends entirely on the nature of the interest being examined.

This case study presents a scenario that is, in our experience, under-analysed in the literature and deeply counterintuitive to clients and their UK advisers. Ms. Harrison is simultaneously the discretionary beneficiary of one trust and the life tenant of another. Both trusts were settled by the same person. She is considering relocating to Spain. And yet her two beneficial interests will receive wholly different Spanish tax treatment — one largely dormant while the settlor is alive, the other immediately and comprehensively taxable from the first day of Spanish residency. Understanding why is the purpose of this article.

1. The Scenario: Ms. Harrison's Asset Profile

Ms. Harrison is a British national who has spent her entire working life in the United Kingdom. She is now considering a move to Spain — drawn by the climate, the lifestyle, and the relative cost of living. She has no existing connection to Spain: no property there, no prior residency, no Spanish income. Her asset base, as it stands, is substantially UK-centred.

The Anonymised Facts: Ms. Harrison's Position

Ms. Harrison: British national. Long-term UK tax resident. Employed in London. Contemplating relocation to Spain within the next 12–24 months. No prior Spanish residency.

Personal assets:

Falcon 1990 Settlement (Jersey-administered discretionary trust, settled 1990):

Falcon 1992 Settlement (Jersey-administered interest-in-possession trust, settled 1992):

The contrast between the two interests could not be more stark in English trust law terms, and — as we shall explain — the contrast is equally fundamental in Spanish tax law terms, even though Spain has no domestic trust concept at all.

2. Why Spain Must Characterise Both Interests

Spain's civil law system does not recognise the common law trust. There is no equivalent concept in Spanish property or succession law. The AEAT and the Dirección General de Tributos (DGT) have, over decades of binding consultation practice, developed a doctrine of look-through and re-characterisation: when a Spanish tax resident holds a beneficial interest in a foreign trust, the AEAT asks what the economic substance of that interest most closely resembles under Spanish civil law, and taxes accordingly.

The starting point in the DGT's analysis — confirmed in a number of published binding consultations over the past two decades — is attribution. The DGT's general position is that trust assets should be attributed to the person who holds the true economic ownership. For a discretionary trust where the settlor retains economic significance, the default is to attribute assets to the settlor while the settlor is alive. For a beneficiary holding a fixed entitlement to income, the analysis is different: the income entitlement looks more like a property right that the beneficiary themselves holds.

This is why Ms. Harrison's two interests produce different outcomes. Her discretionary interest in the Falcon 1990 Settlement is not a right to anything: it is a mere expectation (mera expectativa) that trustees might one day exercise their discretion in her favour. Her life tenancy in the Falcon 1992 Settlement is an immediate property right: she is entitled to the income as it arises, automatically and without any exercise of trustee discretion. Spanish tax law treats those two situations as fundamentally different, because they are.

3. The Falcon 1990 Settlement: A Discretionary Interest

Spanish characterisation: mera expectativa

A discretionary beneficiary holds no vested right to trust income or capital. The trustees may pay them everything, something, or nothing. This position has been characterised in DGT guidance as a mera expectativa — a mere expectation or contingent hope, not a legal right capable of enforcement. For Spanish tax purposes, a mera expectativa is not an asset that the beneficiary owns, and therefore not an asset on which the beneficiary can be taxed currently.

The logical consequence of this analysis is that, while the settlor is alive, the DGT's general position attributes the trust assets to the settlor rather than to any discretionary beneficiary. The settlor was the one who established the trust, transferred the economic value into it, and retains — in the DGT's view — a latent economic relationship with the assets, even after formally excluding herself from benefit. This creates a structural tension: Mrs. Falcon is excluded from benefit, so she receives no income or capital. Yet the DGT's general approach would assign the economic ownership of the trust assets to her, and in principle attribute the trust's income to her for Spanish IRPF purposes — a result she does not achieve in practice because she is not a Spanish resident.

The key consequence for Ms. Harrison is this: while Mrs. Falcon is alive, the Falcon 1990 Settlement is largely fiscally invisible to Ms. Harrison for annual IRPF purposes. No income arising within the trust is attributed to her. The trust generates income each year; she pays no Spanish tax on it. She holds a beneficial interest; but it produces no current Spanish tax obligation on an arising basis.

When Ms. Harrison receives a distribution

The picture changes entirely when trustees exercise their discretion and make a distribution to Ms. Harrison. At that point, the DGT treats the distribution not as a payment of income attributable to the beneficiary, but as a gift from the settlor to the beneficiary — an act of liberalidad routed through the trust mechanism. The applicable tax is Impuesto sobre Sucesiones y Donaciones (ISD) — Spanish gift tax — at rates ranging from 7.65% on the first tranche to 34% on amounts above €797,555. Regional bonifications may apply depending on the autonomous community of Ms. Harrison's fiscal domicile in Spain.

This is a striking result: a cash distribution from a trust that Ms. Harrison has never previously been taxed on is treated as a taxable gift from an elderly UK woman she may barely know, subject to ISD at gift tax rates. It arises from the DGT's characterisation logic: if the assets belong to the settlor (for Spanish tax purposes), then a payment out of those assets to a third-party beneficiary is a gift from the settlor, not a return of the beneficiary's own income.

On Mrs. Falcon's death: an inheritance event

When Mrs. Falcon dies, the DGT's attribution of trust assets to the settlor during her lifetime terminates. At that moment, all discretionary beneficiaries — including Ms. Harrison — face an inheritance tax event. The trust assets that were attributed to Mrs. Falcon are now treated as passing on death to the beneficiaries. If Ms. Harrison is a Spanish tax resident at that point, she is potentially subject to Spanish ISD inheritance tax (IHT) on her proportionate share of the Falcon 1990 Settlement assets, based on the applicable DGT value at date of death and her degree of kinship with the settlor.

Warning: The Settlor's Death is the Critical Tax Trigger for Discretionary Beneficiaries For Ms. Harrison's discretionary interest in the Falcon 1990 Settlement, the death of Mrs. Falcon while Ms. Harrison is a Spanish tax resident is the event most likely to generate a significant Spanish ISD liability. The quantum cannot be predicted in advance with precision — it depends on the trust's asset values at the date of death, the number of discretionary beneficiaries, and the autonomous community of Ms. Harrison's fiscal domicile. Pre-arrival planning should specifically address this risk.

Modelo 720: a genuinely difficult question

The question of whether Ms. Harrison must declare the Falcon 1990 Settlement on Modelo 720 is one of the most genuinely contested issues in this area of Spanish tax law. Modelo 720 requires Spanish tax residents to declare beneficial interests in foreign trusts where the value exceeds €50,000. The question is whether a discretionary beneficiary — holding only a mera expectativa — is a "real and effective beneficiary" for Modelo 720 purposes, or merely a potential beneficiary.

The conservative approach — and the approach we recommend to clients in doubt — is to declare. The argument that a discretionary beneficiary is not a "real and effective beneficiary" is legally supportable but has not been definitively confirmed by the DGT or the courts. The risk of non-declaration, if the AEAT subsequently takes the view that declaration was required, is a late-filing penalty. The risk of declaration where it was not strictly required is negligible. In the absence of authoritative guidance specifically addressing discretionary beneficiaries who have never received a distribution, prudence dictates disclosure.

4. The Falcon 1992 Settlement: A Life Tenancy

The fundamental difference

Ms. Harrison's position in the Falcon 1992 Settlement is structurally and legally different from her position in the Falcon 1990 Settlement. As life tenant, she has an immediate, automatic, and absolute entitlement to all income generated by the trust assets as that income arises. She does not need the trustees to exercise any discretion. She does not need to make a request. The income is hers by right the moment it arises. This is an existing, vested, enforceable property right — not a mere expectation.

Under Spanish civil law, this type of interest most closely resembles one of two established property concepts: a renta vitalicia (life annuity) or a usufructo (usufruct). Neither concept maps perfectly onto the common law life tenancy, but both are more closely analogous than the discretionary interest in the Falcon 1990 Settlement. The DGT has not definitively resolved which characterisation applies in all cases, and the choice between them has material tax consequences.

Characterisation option A: Renta vitalicia (life annuity)

If the Falcon 1992 Settlement income entitlement is characterised as a renta vitalicia, the income is taxable under the savings base of IRPF — the same base that applies to investment income generally — but at the rates applicable to life annuity income, which involves a percentage inclusion based on Ms. Harrison's age at the time the annuity was constituted. The establishment of the entitlement itself could, in principle, be characterised as a gift event (the creation of a right of economic value by the settlor in favour of Ms. Harrison) — though since this occurred before Ms. Harrison's Spanish residency, the Spanish connecting factors for ISD on that constitutive event would be absent, and the gift characterisation would not in practice generate a pre-arrival Spanish ISD liability.

For wealth tax purposes under this characterisation, the value of the life annuity would be capitalised using the legal interest rate, producing a notional capital value that is included in Ms. Harrison's Impuesto sobre el Patrimonio (NWT) base.

Characterisation option B: Usufructo (usufruct)

The alternative characterisation treats Ms. Harrison's income entitlement as a usufructo — the Spanish civil law concept of a right to the fruits (income and use) of property belonging to another (the bare owners, i.e. the remaindermen). Under this characterisation, the income flowing to Ms. Harrison is taxable as rendimientos del capital mobiliario — income from moveable capital — at savings rates: 19% on the first €6,000, 21% on €6,001–€50,000, 23% on €50,001–€200,000, 27% on €200,001–€300,000, and 28% above €300,000. UK taxes paid on the same income (under PAYE or self-assessment in the UK) would be creditable against the Spanish liability under the Spain–UK Double Taxation Convention.

For wealth tax purposes under the usufruct characterisation, the value of the usufruct is calculated by reference to the underlying asset value of the trust and Ms. Harrison's age, using the formula: 89 minus her age (to a minimum of 10%). This produces a percentage of the trust's asset value that is included in her NWT base each year.

In practice, in several published DGT binding consultations on similar interest-in-possession structures, the DGT has tended to apply the usufruct analysis as the closer analogy for situations where a beneficiary has an automatic income entitlement over a defined fund of assets — rather than a simple payment stream divorced from the underlying assets. The usufruct characterisation is analytically more coherent in a trust-law context, as it preserves the conceptual distinction between the income beneficiary (Ms. Harrison) and the capital beneficiaries (the remaindermen).

Taxable from day one of Spanish residency

Unlike the discretionary interest in the Falcon 1990 Settlement, the life tenancy in the Falcon 1992 Settlement produces an immediate ongoing Spanish tax obligation from the first year of Ms. Harrison's Spanish residency. She does not need to receive a distribution. She does not need the trustees to exercise any discretion. The income arises automatically within the trust and, because she is entitled to it as it arises, she must report it in her Spanish IRPF return for the year in which it arose — whether or not she actually received it in cash.

This is a critical and frequently misunderstood point. The life tenant's IRPF obligation arises on an arising basis, not a receipts basis. If the trustees of the Falcon 1992 Settlement hold the income within the trust for a period before transmitting it to Ms. Harrison — something that is common in practice — she is nonetheless taxable on it in Spain in the year it arose.

Capital of the Falcon 1992 Settlement: deferred IHT question

The capital of the Falcon 1992 Settlement presents a further question that has been addressed in DGT guidance. The remaindermen — the persons entitled to the capital on Ms. Harrison's death — have a fixed, ascertainable entitlement to the trust capital. However, the trustees have discretion as to the timing of any distribution of capital (though not as to the ultimate capital beneficiaries). In several published DGT binding consultations, the DGT has considered the application of Article 24.3 of the Ley del ISD in analogous situations, under which the acquisition of a right whose effectiveness is suspended pending a condition or an exercise of discretion may defer the IHT event until the discretion is exercised. This argument — if accepted — would defer the IHT event on the capital of the Falcon 1992 Settlement until the trustees actually distribute capital to the remaindermen, rather than at Ms. Harrison's death.

Important: Seek a DGT Consulta Vinculante Before Arrival The characterisation of an interest-in-possession trust as either a renta vitalicia or a usufructo — and the question of when IHT is triggered for remaindermen on the capital — are areas of genuine legal uncertainty where pre-arrival DGT binding consultation (consulta vinculante) can provide advance certainty. A consulta vinculante filed before Ms. Harrison becomes a Spanish tax resident can establish the agreed characterisation and secure binding protection against AEAT challenge. This is one of the most valuable planning tools available in the pre-arrival period.

5. Comparison: Two Interests, Two Tax Treatments

The table below summarises the Spanish tax treatment of each of Ms. Harrison's two beneficial interests across the principal tax heads:

Tax dimension Falcon 1990 Settlement (discretionary) Falcon 1992 Settlement (life tenant)
Nature of interest Mera expectativa — no vested right; trustees have absolute discretion Vested property right — immediate automatic entitlement to all income as it arises
Annual IRPF while settlor alive No attribution to Ms. Harrison; assets attributed to settlor (Mrs. Falcon) for Spanish fiscal purposes Income taxable annually in Ms. Harrison's IRPF return as it arises (usufruct: rendimientos del capital mobiliario; annuity: savings base)
Spanish tax on distributions received ISD gift tax applies (7.65%–34%) — treated as gift from settlor Income already taxed on arising basis; distributions of income not separately taxable (avoid double taxation); capital distributions separate analysis
ISD on settlor's death IHT event for all discretionary beneficiaries — progressive IHT rates on attributed share No new attribution event at settlor's death; Ms. Harrison already holds a recognised Spanish property right; capital IHT question deferred under Art. 24.3 LISD argument
Wealth tax (NWT) No NWT inclusion for Ms. Harrison while settlor alive (assets attributed to settlor) Value of life interest included in NWT base each year: usufruct methodology (asset value × age %) or capitalised annuity value
Modelo 720 Legally contested; conservative approach: declare (potential beneficiary vs. real and effective beneficiary debate) Declaration of the income entitlement value required under Obligation 2 (rights and entitlements over foreign assets exceeding €50,000)
UK DTC credit UK tax on distributed amounts creditable if/when distributions made UK income tax paid on same trust income creditable against Spanish IRPF liability

6. Pre-Arrival Planning Options

The period before Ms. Harrison triggers Spanish tax residency — before she has spent 183 days in Spain in a calendar year — is the most valuable planning window. Once she becomes a Spanish tax resident, the tax obligations described above apply automatically and cannot be reversed. The following options warrant analysis in that pre-arrival period.

  1. Pre-residency distributions from both trusts Any distribution from either trust made while Ms. Harrison is still a UK tax resident and not a Spanish tax resident falls outside the Spanish ISD gift tax net (assuming no Spanish connecting factors, such as real estate situated in Spain). From the Falcon 1990 Settlement, a pre-arrival distribution in exercise of trustees’ discretion would be received by Ms. Harrison in the UK, taxed as income under UK rules, and produce no Spanish ISD obligation. From the Falcon 1992 Settlement, arrears of income received pre-arrival are outside Spanish IRPF. The planning question is whether the trustees and the family consider it appropriate to accelerate distributions in this window, and whether the amounts involved justify the coordination required.
  2. Beckham Law (régimen especial de impatriados): a critical six-year window Ms. Harrison may qualify for the Beckham Law regime (Article 93 LIRPF) if she moves to Spain for employment reasons and has not been a Spanish tax resident in the previous five years. Under the Beckham Law, qualifying individuals pay IRPF on a non-resident basis for the year of arrival and the following five years — a total of up to six years. The key benefit for Ms. Harrison is that non-Spanish-source income (including investment income from her UK portfolio and, critically, income from foreign trusts) is generally not taxable in Spain during this period. The Falcon 1992 Settlement income, which would normally be taxable from day one of Spanish residency, may be entirely sheltered for the Beckham Law period. This is one of the most significant planning opportunities available to a UK national in Ms. Harrison’s position.
  3. Timing arrival after settlor's death If Mrs. Falcon’s health is a relevant factor, there may be significant value in Ms. Harrison delaying her Spanish move until after Mrs. Falcon’s death. If Mrs. Falcon dies while Ms. Harrison is still a UK resident, the inheritance event — which, for the Falcon 1990 Settlement, could generate Spanish IHT on Ms. Harrison’s attributed share — falls outside the Spanish ISD net (assuming no Spanish assets in the trust and no habitual residence of Ms. Harrison in Spain). The reorganisation of beneficial interests following the settlor’s death can then be managed as part of the pre-arrival planning process, with a cleaner starting position for Spanish residency. This is a sensitive planning consideration that requires careful personal and family as well as tax analysis.
  4. Trust restructuring: converting the interest in possession to fully discretionary Converting the Falcon 1992 Settlement into a fully discretionary trust — removing Ms. Harrison’s automatic income entitlement and replacing it with a discretionary beneficial interest — would, if effective, change her Spanish tax position fundamentally. Instead of an immediately taxable income right, she would hold only a mera expectativa, and the annual IRPF obligation on the Falcon 1992 Settlement income would fall away (subject to the attribution analysis applying to the Falcon 1990 Settlement). However, this restructuring requires careful analysis of: (i) UK trust law — whether the trustees have power to effect such a conversion without court approval; (ii) the consequences for Ms. Harrison under UK income tax; (iii) whether the conversion is a taxable event under UK capital gains tax or IHT; and (iv) whether it would be respected by the DGT as a genuine change of structure rather than an artificial pre-arrival arrangement. It is not a straightforward step.
  5. DGT consulta vinculante before arrival A consulta vinculante — a written binding ruling request submitted to the Dirección General de Tributos — provides advance certainty on how the AEAT will characterise Ms. Harrison’s interests. The DGT is obliged to respond within six months, and the resulting ruling binds the AEAT as regards the person who submitted the consulta. Filing the consulta before arrival — on the basis that she intends to become a Spanish tax resident — is possible and can be structured to present the most favourable characterisation of her interest-in-possession trust, to confirm the Modelo 720 reporting obligations, and to address the ISD analysis on distributions from the Falcon 1990 Settlement. This is a powerful tool that is underutilised in practice, primarily because it requires early engagement with the process.

7. Ongoing Obligations as a Spanish Tax Resident

Once Ms. Harrison becomes a Spanish tax resident, the following annual compliance obligations apply. The complexity of managing these obligations in parallel should not be underestimated; they require co-ordination between Jersey trustees, UK advisers, and Spanish tax counsel each year.

Annual IRPF

Ms. Harrison's IRPF return must include, each year: (i) her UK salary (grossed up for UK PAYE deducted, with credit); (ii) income from her personal investment portfolio; (iii) income from the Falcon 1992 Settlement, on an arising basis, characterised as rendimientos del capital mobiliario under the usufruct approach. For the Falcon 1990 Settlement, no annual arising-basis attribution applies while Mrs. Falcon is alive; but any distribution received must be reported as an ISD gift event, not in IRPF.

Modelo 720 annual assessment

The three blocks of Modelo 720 must be assessed each year:

Modelo 720: Ms. Harrison's Reporting Obligations Modelo 720 must be filed between 1 January and 31 March following the relevant tax year. Late filing attracts a fixed penalty of €100 per item (minimum €1,500 per block) following the post-ECJ moderated penalty regime. An update filing is required in subsequent years where the declared value of any block changes by more than €20,000.

Wealth tax (Impuesto sobre el Patrimonio / Solidarity Tax)

As a Spanish tax resident, Ms. Harrison is subject to NWT on her worldwide assets above the applicable exempt threshold (currently €700,000 in most autonomous communities, with an additional €300,000 personal residence exemption). Her NWT base will include: the London flat (if retained); the personal investment portfolio; and the value of her life interest in the Falcon 1992 Settlement, calculated using the usufruct formula (asset value × (89 minus age)% — which for a person aged, say, 55, would be 34% of the trust’s capital value). The discretionary interest in the Falcon 1990 Settlement is not included in her NWT base while Mrs. Falcon is alive.

ISD vigilance on Falcon 1990 distributions

Any distribution from the Falcon 1990 Settlement while Ms. Harrison is a Spanish tax resident must be reported as a gift for ISD purposes. The ISD return (Modelo 651 for gifts) is due within 30 business days of the date of the gift. The applicable rate and regional bonifications depend on the autonomous community of Ms. Harrison’s fiscal domicile. Trustees should be briefed to provide advance notice of any intended distribution so that the ISD analysis can be completed before the distribution is made.

8. Frequently Asked Questions

Q1: Can Ms. Harrison avoid all Spanish tax on trust income during the Beckham Law period?
Potentially, and substantially so — but not necessarily entirely. The Beckham Law regime exempts most foreign-source income from Spanish IRPF for qualifying individuals. Income arising from the Falcon 1992 Settlement (Jersey-source) and Ms. Harrison's UK personal portfolio would generally be outside the scope of Spanish IRPF during the Beckham Law period. However, her UK salary from a Spanish employer (if she is employed in Spain) would still be taxable in Spain at the flat non-resident rate of 24% up to €600,000. The Beckham Law does not shelter ISD events: if Ms. Harrison receives a discretionary distribution from the Falcon 1990 Settlement during the Beckham Law period, the ISD gift tax analysis still applies. And the Beckham Law's foreign income exemption does not automatically apply to all income streams without qualification — the specific terms of her qualifying employment and the source of each income item must be analysed carefully before reliance on the exemption.
Q2: If Mrs. Falcon dies while Ms. Harrison is a Spanish tax resident, what happens?
Mrs. Falcon’s death while Ms. Harrison is a Spanish resident triggers two distinct events. First, for the Falcon 1990 Settlement, the DGT’s attribution of trust assets to the settlor terminates. All discretionary beneficiaries — including Ms. Harrison — face a potential Spanish IHT (ISD) event based on their proportionate share of the trust assets at date of death. The exact quantum depends on the trust’s assets, the number of beneficiaries, and the autonomous community of Ms. Harrison’s residence. If Ms. Harrison’s share of the trust exceeds the applicable exemption threshold and no bonifications apply (bonifications are generally linked to close family relationships, which Ms. Harrison may not have with Mrs. Falcon), the IHT exposure could be substantial. Second, for the Falcon 1992 Settlement, the situation is less disruptive: Ms. Harrison already holds a recognised vested income entitlement that does not change on Mrs. Falcon’s death. The trustees continue to manage the trust fund and pay income to Ms. Harrison. The capital IHT question for the remaindermen is separate. The death event itself, in relation to the Falcon 1992 Settlement, may produce little change in Ms. Harrison’s tax position if the trust continues.
Q3: Must Ms. Harrison declare Falcon 1992 Settlement income in Spain before the trustees transmit it to her?
Yes — and this is one of the most practically significant aspects of the life tenancy position. As life tenant, Ms. Harrison’s entitlement to the income of the Falcon 1992 Settlement arises automatically when the income arises within the trust. Under the IRPF arising-basis analysis for an interest-in-possession trust, the Spanish tax obligation accrues in the tax year in which the income arises — not the year in which it is actually paid over to her. If the trustees hold income in the trust for several months before transmission (as is common in practice), Ms. Harrison nonetheless has a Spanish IRPF liability for the year in which that income arose. This creates a potential cash-flow problem: she may owe Spanish tax on income she has not yet received in cash. The practical solution is to ensure the trust deed and trustee operating practice provide for prompt transmission of income to the life tenant, or alternatively that the trustees make advance payments or establish a reserve facility. This requires early discussion with the Jersey trustee company.
Q4: Is the Falcon 1990 Settlement completely invisible for Modelo 720 purposes?
Not necessarily, and the answer to this question is one of the genuinely unresolved areas of Spanish trust taxation. The strongest argument against declaration is that a discretionary beneficiary holds no vested right — only a mera expectativa — and therefore does not hold a "right or entitlement" over the trust assets that falls within Modelo 720’s scope. The counter-argument is that the DGT’s general position attributes trust assets to the settlor (or, in some formulations, to the "real and effective beneficiaries"), and that being named in the trust deed as a discretionary beneficiary is sufficient to trigger a declaration obligation. In the absence of a DGT binding consultation specifically addressing the position of a discretionary beneficiary who has never received a distribution, the conservative approach is to declare. The filing cost is minimal; the penalty for non-declaration — if the AEAT subsequently takes the view that declaration was required — could be material.
Q5: Can Ms. Harrison obtain a DGT ruling before she moves to Spain?
Yes — and this is one of the most valuable pre-arrival planning steps available to her. A consulta vinculante can be submitted to the DGT by any person with a "legitimate interest" in the tax question being addressed, which includes a person who intends to become a Spanish tax resident and wishes to establish the tax treatment of their existing interests before doing so. The DGT has a statutory six-month response period. The resulting ruling binds the AEAT as regards the person who submitted the consulta, provided the facts presented were accurate and the facts remain the same when the ruling is applied. For Ms. Harrison, the most valuable questions to address in a consulta are: (i) the characterisation of the Falcon 1992 Settlement income entitlement (usufruct or life annuity?); (ii) the Modelo 720 obligation in respect of the Falcon 1990 Settlement; and (iii) the ISD treatment of future discretionary distributions from the Falcon 1990 Settlement. Obtaining binding advance certainty on these questions before she arrives in Spain removes the principal areas of legal risk from her Spanish tax position.

Considering a move to Spain with a UK trust interest?

Jacob Salama advises UK nationals on the Spanish tax treatment of discretionary and interest-in-possession trust interests — covering IRPF, ISD, Modelo 720, wealth tax, and pre-arrival planning. Advance analysis before you trigger Spanish residency is always more valuable than resolving problems after the fact.

Legal Disclaimer & Confidentiality Notice
This article is based on a real matter handled by SALAMA LEGAL SLP and has been anonymised for publication. All names — including the client ("Ms. Harrison"), the settlor ("Mrs. Falcon"), the trust names ("Falcon 1990 Settlement" and "Falcon 1992 Settlement"), and the trustee — have been changed and all identifying details modified to protect client confidentiality. The dual beneficial interest structure, the Spanish tax analysis, and the planning options described reflect the actual issues encountered in practice. This article does not constitute legal or tax advice, and no lawyer-client relationship is created by reading it. Spanish trust taxation law is a complex, rapidly evolving, and highly fact-specific area. The analysis above reflects published DGT guidance and AEAT administrative practice as understood in May 2026, but the applicable law and administrative practice may have changed. The characterisation of interest-in-possession trusts under Spanish law remains an area of legal development where the DGT has not issued comprehensive definitive guidance, and different factual patterns may produce different results. Each case depends entirely on its specific trust terms, the applicable governing law, the taxpayer's individual circumstances, and the current state of the law. SALAMA LEGAL SLP (Colegiado nº 11.294, ICAMálaga) accepts no liability for actions taken or not taken based on this article. Always obtain specific professional advice tailored to your circumstances before taking any action.
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