Why Two Wills — Not One
Most people with a Spanish property assume their UK, Irish, US or German will covers everything. In a narrow legal sense, a foreign will can dispose of Spanish assets — but in practice, activating a foreign will for Spanish property requires your heirs to apostille and translate the foreign probate, present it to a Spanish notary, navigate a recognition procedure, pay Spanish inheritance tax, and register the property transfer. This takes 12–24 months longer and costs significantly more than a clean Spanish notarial will.
The better approach is straightforward: make a Spanish notarial will (testamento abierto ante notario) that covers only assets physically located or registered in Spain, and keep your home-country will for everything else. Each will is operative directly in its own jurisdiction. Your heirs open two succession processes in parallel — both clean and fast.
The core principle
One will — one jurisdiction. The Spanish will covers Spanish situs assets only. The home-country will covers everything else. Neither will mentions or affects the other.
The Revocation Trap: The Most Common — and Most Costly — Mistake
A standard Spanish notarial will contains a clause that reads, in substance: "I revoke all previous wills and codicils." If you sign a Spanish will after your UK or Irish will, that standard clause revokes your home-country will. Your family may then discover that your only valid will is the Spanish one — which deliberately covers only your apartment in Marbella — leaving your entire home-country estate intestate.
⚠️ This must be fixed deliberately — it is not automatic
The Spanish will must include two specific clauses that are not standard: (1) a geographic scope limitation — "this will covers only assets located in Spain" — and (2) a non-revocation clause — "this will does not revoke any prior will dealing with assets located outside Spain." Without both, the Spanish will is a legal trap for your heirs.
The risk runs in both directions. Your home-country solicitor must also ensure their will does not contain a broad revocation clause that catches the Spanish will. A clause such as "I revoke all previous wills" in a UK will made after the Spanish will would revoke the Spanish will, leaving your Spanish estate intestate. Both documents must be drafted in coordination.
How the Two-Will Structure Reduces Inheritance Tax
The tax planning case for a Spanish will goes beyond convenience. A well-drafted Spanish will is a direct inheritance tax planning tool.
1. Targeting regional bonifications
Spanish inheritance tax is governed by both national law and the rules of the Comunidad Autónoma where the deceased was resident or where the assets are located. Regional bonifications vary dramatically:
| Region | Bonification for Group I/II heirs | Effective ISD for children/spouse |
|---|
| Andalucía | 99% bonification | Near zero in most cases |
| Comunidad de Madrid | 99% bonification | Near zero in most cases |
| Canary Islands | 99.9% bonification | Effectively zero |
| Illes Balears | High bonifications (expanded 2022–24) | Very low for close family |
| Comunitat Valenciana | 75% bonification + reductions | Low for direct heirs |
| Cataluña | Minimal bonification | Meaningful tax — up to 34% |
| Castilla y León / others | Varies — partial bonifications | Moderate |
A Spanish will lets you specify that specific assets go to specific heirs in a way that maximises the applicable reduction. For example, the main residence (vivienda habitual) reduction of 95% — capped at €122,606.47 per heir under national law, but extended by several regions — applies only when the property passes to a qualifying heir and they commit not to sell for 10 years. Your Spanish will can explicitly direct the residence to the heir most likely to keep it, locking in the reduction.
2. The 95% main residence reduction
Under Art. 20.2.c) Ley 29/1987, the vivienda habitual of the deceased qualifies for a 95% reduction in the taxable base, up to €122,606.47 per heir (national minimum — many regions apply higher caps or percentages). To qualify:
- The beneficiary must be the spouse, a descendant, ascendant, or a distant relative over 65 who was living with the deceased for the two years prior to death.
- The heir must not sell the property for 10 years (5 years in some regions).
Without a Spanish will, the heirs may not be aware of this requirement and may sell quickly — losing the reduction and triggering a retroactive tax demand. A Spanish will that explains the requirement and directs the property to the right heir is essential for families owning the deceased's main Spanish home.
3. Family business relief
If the deceased owned shares in a Spanish S.L. or S.A. that qualifies as a empresa familiar, a 95% reduction applies to those shares under Art. 20.2.c) Ley 29/1987. The conditions are strict — the deceased must have been actively involved in management and received more than 50% of their net income from the business. A Spanish will that explicitly directs qualifying business assets to the right heir ensures the reduction is not missed.
4. Structuring splits between heirs
Where multiple heirs exist, allocating assets through a Spanish will can avoid the coeficiente multiplicador — the multiplier applied to heirs in Groups III and IV (siblings, non-relatives) who pay tax at higher effective rates than direct family. Directing high-value assets specifically to Group I and II heirs (children, spouse, parents) through the Spanish will minimises the overall tax burden.
EU Succession Regulation (Brussels IV) and the Professio Juris
Since August 2015, EU Regulation 650/2012 — Brussels IV — determines which law governs the succession of assets in EU member states. The default rule: the law of habitual residence at death. For a British national resident in Marbella, Spanish law would apply by default to all assets — including the villa in Benahavís and the apartment in London (if the UK has not opted out, which it has).
Post-Brexit note
The UK is no longer bound by Brussels IV as a member state. However, Spanish courts continue to apply Brussels IV when dealing with the Spanish assets of a deceased UK national — meaning a UK national who dies in Spain can still make a professio juris election in their Spanish will choosing English, Scottish or Northern Irish law.
What the professio juris does
By including a professio juris clause in the Spanish will, you elect your national law to govern the succession of your Spanish assets. The practical consequences:
- British nationals choosing English law: No forced heir rules (adult children have no mandatory right to any share of the estate). You can leave your Spanish villa to your partner, a step-child, a charity or a trust without your biological children having a legal claim.
- German nationals choosing German law: German forced heir rules apply (children entitled to half their intestate share), which may be different from the Spanish legítima of two-thirds. Whether this is more or less favourable depends on the estate composition.
- Irish nationals choosing Irish law: The Succession Act 1965 gives a spouse a legal right share (one-third if there are children) and children have no absolute forced heir rights in the continental sense. Often more flexible than Spanish legítima.
- US nationals: The US is not party to Brussels IV but Spain generally recognises an election of state law in a Spanish will under private international law principles.
The professio juris election is made in the Spanish will itself — it cannot be made after death. If you already have a Spanish will without one, it is worth reviewing and updating it.
Spanish forced heir rules without the professio juris
Without a professio juris, Spanish law applies to your Spanish estate if you are habitually resident in Spain. Under the Spanish Civil Code:
- Legítima estricta (one-third of estate): must pass to children equally.
- Mejora (one-third): must pass to children/grandchildren but you can choose which ones.
- Libre disposición (one-third): you can leave to anyone.
- Spouse: entitled to the usufruct of the mejora third.
This means that without the professio juris, only one-third of your Spanish estate can be freely left to your partner if you have children — even if all parties agree. The other two-thirds must follow the legítima rules, limiting the tax planning options available.
Special Rules for US Nationals
US citizens face a unique situation. The US-Spain Double Taxation Agreement (1990, as amended 2013) contains a Saving Clause (Article 1(4)) that preserves the US's right to tax its citizens on worldwide income regardless of Spanish residence — but this applies to income tax, not succession tax. For inheritance purposes, the US estate tax rules are separate.
- The US has no estate tax treaty with Spain. Each country taxes independently, with no treaty relief for Spanish inheritance tax on US citizens dying in Spain.
- The US federal estate tax exemption (currently over $13M per person) means that most US expat estates in Spain do not face US federal estate tax — but state estate taxes may apply depending on the deceased's domicile.
- Spain applies inheritance tax on all Spanish situs assets regardless of the nationality of the deceased or heirs.
- A Spanish will with a professio juris electing the law of the relevant US state avoids Spanish forced heir rules, giving US nationals maximum flexibility in distributing Spanish assets.
FBAR / Modelo 720 and the two-will structure
Note that Modelo 720 (declaration of foreign assets) and FBAR obligations are annual compliance requirements and are separate from estate planning. However, a Spanish will that clearly identifies which assets are Spanish situs simplifies the Modelo 720 analysis for living clients and the inheritance tax return for heirs after death.
What Each Will Should Cover
| Spanish Will (situs assets only) | Home-Country Will |
|---|
| Spanish residential and commercial property | Property outside Spain |
| Spanish bank and brokerage accounts | Bank, investment and pension accounts outside Spain |
| Shares in Spanish S.L. or S.A. | Shares in companies incorporated outside Spain |
| Spanish motor vehicles | Vehicles and personal assets outside Spain |
| Participation in Spanish comunidades de propietarios | Digital assets, IP rights and businesses outside Spain |
Drafting tip: define by location, not by asset type
The Spanish will should be defined geographically — "all assets located or registered in Spain at the date of my death" — rather than listing individual assets. This automatically captures future Spanish acquisitions and avoids gaps if assets are moved or sold between the date of the will and the date of death.
Practical Steps
- Review your existing wills. Identify whether your current home-country will contains a broad revocation clause and whether it explicitly deals with (or leaves a gap for) Spanish assets.
- Take cross-border succession advice. The tax and legal analysis must consider both jurisdictions simultaneously — ideally one adviser coordinating both sides, or two advisers in close contact.
- Draft the Spanish will with scope limitation and non-revocation clause. Include the professio juris if appropriate. Confirm the will is signed before a Spanish notary and registered with the RGAUV.
- Update the home-country will. Add an explicit clause confirming it does not revoke the Spanish will. Ensure it does not purport to deal with Spanish situs assets.
- Keep both wills current. Review whenever you acquire or dispose of assets in either country, change your habitual residence, or experience a change in family circumstances (marriage, divorce, children).
Frequently Asked Questions
Can I have a Spanish will and a UK / US will at the same time?
Yes — and for most people with assets in both Spain and another country it is the recommended approach. The key is that the two wills must be carefully coordinated so that signing one does not accidentally revoke the other. The Spanish will must explicitly limit itself to Spanish situs assets and include a non-revocation clause.
Does a Spanish will cancel my UK or US will?
It can, if the Spanish will contains the standard revocation clause that most Spanish notarial wills include by default. A properly drafted Spanish will must expressly limit its geographic scope to assets located in Spain and state that it does not revoke any foreign will dealing with assets outside Spain. This is a drafting point that must be handled deliberately — it is not automatic.
How does the two-wills strategy reduce inheritance tax?
A Spanish will lets you specify exactly which Spanish assets go to which heirs, enabling you to maximise regional bonifications (e.g. the 99% bonification in Andalucía or Madrid, the 95% main residence reduction, the family business exemption). Without a Spanish will, heirs must navigate the general rules and may miss significant reductions. The professio juris election also allows you to opt out of Spanish forced heir rules, giving full freedom to allocate assets in the most tax-efficient way.
What is the professio juris and why does it matter for tax?
The professio juris is a clause in your Spanish will choosing your national law to govern your succession under EU Regulation 650/2012 (Brussels IV). For British, US, Australian and other nationals whose home-country law has no forced heir rules for adult children, electing your national law means you can leave Spanish assets to whoever you choose — not just children. This is critical for tax planning: it allows you to direct assets to the heir who can claim the best reduction, rather than being constrained by the Spanish legítima rules.
I already have a Spanish will — do I need to update it?
Possibly. Check whether your existing Spanish will: (1) contains a geographic scope limitation (Spanish assets only), (2) includes a non-revocation clause for foreign wills, (3) includes a professio juris if that would be beneficial for you, and (4) correctly structures the distribution to maximise regional reductions. Many Spanish wills drafted without cross-border advice miss all four of these points. We review existing wills and advise on whether an update is worthwhile.
Does the Beckham Law affect how my Spanish will should be drafted?
Yes. While under the Beckham Law regime (Art. 93 LIRPF) you are treated as a non-resident for IRPF purposes, this does not change Spanish inheritance tax rules — your heirs still pay Spanish ISD on your Spanish assets. However, Beckham Law recipients often have significant non-Spanish assets and income that should explicitly be excluded from the Spanish will's scope. The professio juris election is especially important for Beckham Law clients with multiple nationalities or habitual residence questions.
Review Your Will Strategy for Spain
Whether you are making your first Spanish will or reviewing an existing one, we analyse the cross-border tax and succession picture and advise on the optimal structure for your specific situation.
Legal disclaimer
This article is for general informational purposes only. It does not constitute legal or tax advice and does not create a lawyer-client relationship. Succession law and inheritance tax rules change frequently and their application depends on individual circumstances. Jacob Salama — Salama Legal SLP — is a registered Spanish lawyer (Colegiado nº 11.294, ICAMálaga) and is not authorised to provide UK, US or other non-Spanish legal advice.
