German-Spanish inheritance law
Professional inheritance settlement in Spain
Your key to handling the acceptance of an inheritance, estate planning and drafting a will
- Germany-wide advice & representation
- No on-site appointment necessary
- Inheritance settlement throughout Spain
Martina Bürsgens-Dyllong
Lawyer, specialist in inheritance law and abogada inscrita with more than 15 years of experience and notary public
- Member of the Dortmund Lawyers' and Notaries' Association (Anwalt- und Notarverein Dortmund e.V.)
- Member of the Inheritance Law Working Group of the German Bar Association (Deutscher Anwaltverein e.V.)
- Member of the German Association for Inheritance Law and
Property Succession (DVEV) - Member of the Dortmunder Juristengesellschaft e.V.
- Member of the German-Spanish Lawyers' Association e.V.
- Successful participation in the "Certified executor (AGT)" course
- Member of the Westfälischer Industrieklub Dortmund e.V.
Our core competencies at a glance
Heirs Spain
Inherit property
Give a property as a gift
Estate planning
We represent clients throughout Spain (mainland, Balearic and Canary Islands) in all aspects of inheritance.
A personal consultation can be held at our Dortmund office. If this is too time-consuming for you due to the distance or other circumstances, advice and representation can also be provided without a personal appointment. Communication will then take place by telephone and/or e-mail, etc. The handling of your inheritance matter or the sale of an inherited property in Spain is therefore possible regardless of your place of residence in Germany, Spain or worldwide. If you have any further questions, we will be happy to help you. Please call us without obligation or use our contact form.
We cater to the needs of the respective heirs and handle the estate for you locally without you having to travel to Spain in person. Our services are not only used by individual heirs, but also by communities of heirs, executors, lawyers, caregivers and authorized representatives on the basis of a general or precautionary power of attorney.
Our core competencies at a glance
Heirs Spain
Inherit property
Give a property as a gift
Estate planning
If the deceased leaves assets in Spain and the estate includes a property, the heir must sign the so-called deed of acceptance of inheritance (escritura de aceptación de herencia) before a Spanish notary in order to be entered as an heir in the Spanish land register. If there are bank assets in a bank account, these will only be paid out once it has been proven that the corresponding inheritance tax declaration has been submitted. Before this, the heir cannot usually dispose of the bank assets.
This is a complex and time-consuming process because, unlike in Germany, in Spain it is not sufficient to submit a certificate of inheritance or a notarized will to the land registry in order to be registered as the owner of the property.
Is there a specific deadline for settling the inheritance in Spain?
First of all, a distinction must be made between inheritance law and inheritance tax law.
1. inheritance law
Inheritance law regulates which inheritance law is applicable, i.e. who inherits what proportion of the estate. If German inheritance law is applicable, there is no deadline for accepting the inheritance. There are only time limits as to when the inheritance must be disclaimed.
According to German inheritance law, upon the death of a person (succession), their assets (inheritance) are transferred in their entirety to one or more persons (heirs) in accordance with Section 1922 of the German Civil Code (Vonselbsterwerb).
In Germany, the inheritance is therefore deemed to have been accepted if it is not:
- within 6 weeks of the date on which the heir becomes aware of the claim and the reason for the appeal
- within 6 months of the date on which the heir becomes aware of the claim and the grounds for the appeal if the deceased's last habitual residence was abroad or if the heir is abroad at the beginning of the period,
has been waived. The waiver is only formally effective if it is publicly notarized before a notary or submitted for the record of the probate court.
2. inheritance tax in Spain/Plusvalía
The deadline, which in the context of estates with assets in Spain is usually meant in the context of advice, refers to the deadline for paying inheritance tax in Spain. This is generally 6 months, counted from the date of death of the deceased. It can be extended by a further 6 months if a request is made to the tax office by the 5th month.
If this deadline is not met, the heir does not lose their inheritance rights. The consequence of late payment is that the heir must pay penalties and possibly interest on the tax due, provided the deadline for paying the tax has not expired.
When a property is inherited, the Plusvalía municipal (municipal capital gains tax) must also be paid within 6 months of the date of death, if applicable.
What documents do I need for the Spanish acceptance of inheritance?
Every inheritance case is different, which is why an individual consultation is needed to clarify which documents and records are required in your case.
However, the following documents are generally always required for the settlement of an inheritance in Spain:
- Original death certificate (either the German international death certificate or a Spanish death certificate)
- Proof of inheritance: e.g.: German notarized will together with opening protocol or German certificate of inheritance (each with a certified translation and apostille), European certificate of inheritance or original certified Spanish will
- Certificate from the central register of last wills in Madrid (Certificado de Actos de Última Voluntad) to verify whether a (notarized) will exists in Spain
- Certificate from the register in Madrid to check whether (life/accident) insurance exists in Spain
- In some regions of Spain, proof of consultation of the German Central Register of Wills is also required
- Notarial deed of purchase of the Spanish property ("escritura") together with an indication of the value of the property
- Bank details of the deceased's account
- Vehicle documents of the deceased's car, if with Spanish license plate number
- Last I.B.I. (property tax document)
- N.I.E. number (Spanish tax number) of the deceased and for the heir
What is the procedure for notarial acceptance of inheritance in Spain?
1. procedure for notarial acceptance of inheritance
First of all, all the documents required for the settlement of your inheritance in Spain must be available so that the notarial deed of acceptance of inheritance can be drawn up. As a rule, the heirs themselves obtain the NIE number required to sign the deed from the relevant Spanish Consulate General in Germany. This should be done in good time, as this procedure can take several weeks. At the same time, the documents listed above should be obtained in the correct form (e.g. certified translation, apostille) so that the notarization before the Spanish notary does not fail due to the lack of important documents.
2. expiry after the notarial deed of acceptance of inheritance
Once the notarial deed of acceptance of inheritance has been signed before the Spanish notary, the deed is executed. The aim is for the heir to be entered in the corresponding land register as the owner of the property and to be able to liquidate the deceased's bank account, re-register the car and carry out other changes of registration.
In order for the heir to be able to make the corresponding transfers, he must first prove that he has liquidated the inheritance tax or, if he does not have to pay inheritance tax, that he has nevertheless submitted the inheritance tax return to the tax office.
Only then can the entry be made in the property register, the bank account liquidated, vehicles re-registered and other changes made.
Professional handling of your inheritance in Spain
The handling of the acceptance of an inheritance in Spain is one of our core competencies as lawyers. As part of an initial consultation, your circumstances will be individually analyzed and we will discuss which documents are necessary in your case for the settlement of the estate. It is advisable to bring all documents relating to the Spanish estate that you have with you to the first appointment. If personal contact is not possible, this is not a problem, as all steps in the process can also be clarified by telephone, post or e-mail. If the documents listed above are not available, we will usually obtain them for you. This also applies to the corresponding translations and apostilles. We carry out the acceptance of inheritance for you on site and ensure that you are entered in the relevant land register. We can also handle other services for you by arrangement.
Since the ECJ ruling (Case C-127/12) regarding inheritance tax and gift tax for non-resident taxpayers in Spain, all heirs who inherit assets on Spanish territory are subject to the same tax laws for both non-residents and tax residents in Spain. In Spain, the respective autonomy statutes have their own regulations for any tax allowances in relation to inheritance and gift tax. This means that in the event of an inheritance, the heir must calculate the inheritance tax according to the regulations in the respective region.
As a result, the situation has improved considerably in many cases.
In most regions of Spain, there are significant tax benefits if the heir is a spouse or child of the deceased (tax groups I and II).
In Andalusia, for example, the current tax-free amount is 1,000,000.00 euros and in other regions a discount of up to 99% is granted on the tax payable.
Enormously high amounts, as were still payable before the ECJ ruling, no longer exist in many cases for inheritances among tax-privileged groups (spouses, children). The situation is different for inheritances between collateral relatives (e.g. siblings) and non-relatives or unmarried couples.
Whether and how much inheritance tax is payable in your case must be determined individually.
It is also important to know that there is no double taxation agreement between Germany and Spain with regard to inheritance tax. With regard to real estate assets, however, there is the possibility of offsetting, which can be applied for. The requirements for this are checked by the respective tax advisors. This requires coordination between the German and Spanish tax advisors, which we will be happy to do for you.
Giving away, selling or bequeathing a property in Spain?
If you own property in Spain, you often ask yourself which is the most sensible way to transfer the property to the next generation. Should they give away, sell or bequeath the property during their lifetime?
There is no general answer to this question, as many factors play a role and, depending on the property owner's objective, a gift or sale may be a better solution for one person than an inheritance for another.
In each individual case, it is important to determine exactly what the reasons are for transferring the property. If it is for tax reasons, it is important to consider whether tax allowances can be utilized during your lifetime and whether a gift or sale should be made or whether a testamentary provision can be made. Spouses could, for example, arrange the transfer of the property in Spain in such a way that the property passes to the next generation in the event of the death of one spouse. If a married couple who have joint property in Spain initially appoint each other as heirs (Berlin will), costs for the transfer of the property in Spain will be incurred in the event of death and inheritance tax may also have to be paid. If one's own child becomes the final heir, he or she will inherit the entire property with the consequence that costs for the transfer of the property will be incurred again, as well as possibly inheritance tax on the entire value of the property. This can be avoided, for example, by drafting the will in such a way that the real estate share of the Spanish property of the first deceased is bequeathed directly to the child, even if the surviving spouse is to be the sole heir.
However, it may also be the case that, despite the potential double costs and tax burden, the spouses wish to inherit from each other. This would be the case, for example, if the property is used for retirement provision or if the surviving spouse is to dispose of the property as they wish during their lifetime.
A transfer for consideration during one's lifetime may be the only possible means if the property owner is prevented from bequeathing the property to the person to whom he or she would like to bequeath the property, e.g. by a binding will or binding inheritance contract. It is important to note that there is often a joint will in which the spouses bind themselves. This means that if one spouse dies, the surviving spouse can no longer change the will.
In the case of a gift, it must again be checked whether there are any claims by other persons and how this affects the gift. This must be examined on a case-by-case basis.
A sale of the property to the next generation may be considered if, for example, claims to a supplementary compulsory portion are to be avoided from an inheritance law perspective.
Otherwise, many decide to sell to a third party if the property is no longer used, for example because the owner is in a nursing home or can no longer travel to Spain for health reasons and the next generation shows no interest in keeping the property.
It should be noted that any type of transfer in Spain may be subject to taxes and additional costs, such as notary and property registry fees. It is therefore important that a tailor-made concept is developed that takes individual requirements into account.
Although there is no one-size-fits-all solution, forward planning can save costs and taxes and ultimately provide a clear arrangement for the transfer of the property, which can avoid disputes within the next generation.
German inheritance law in the light of the EU Inheritance Regulation
The EU Inheritance Law Regulation has been in force in Germany for inheritance cases since 17.08.2015. Among other things, this regulates which law is to be applied in the event of inheritance. The basic rule is that the inheritance law of the country in which the deceased had their habitual residence is to be applied. However, it is possible to choose the law of the deceased's home country (nationality per will/decree of death). In this case, the testator's home law is applied. Special rules apply in cases where wills appear before the cut-off date.
To illustrate this, some examples of inheritance cases after the cut-off date of 17.08.2015 are given:
1. the testator, a German national, had his habitual residence in Germany and left no will. He owned a vacation property in Spain and in France. He dies in his vacation property in Spain.
- German inheritance law is applied
2. the testator, a Spanish national, had his last habitual residence in Germany and occasionally visited his relatives in Spain. He owned a property in Germany and a bank account in Spain. He leaves no will and dies in Germany.
- German inheritance law is applied
3. the testator, a German national, had his last habitual residence in Spain. He leaves a will from 2016 in which he stipulates a choice of law in favor of German inheritance law. He has assets in Germany and Spain and dies in Spain.
- German inheritance law is applied
4. the deceased, a German national, had his last habitual residence in Spain. He only owned assets in Spain. He leaves a will, which he drew up before a German notary in 2005. He dies in Spain.
- German inheritance law is applied
The term "last habitual residence" has not been clearly defined by the EU Succession Regulation. When determining habitual residence, for example, it does not matter in which country the deceased was officially registered with their place of residence. It is therefore all the more important, especially for persons whose last habitual residence cannot be clearly determined, to determine the application of inheritance law during their lifetime and to draw up a will. This applies in particular to Spanish pensioners, persons with foreign assets, persons in need of care who reside in a Spanish nursing home, entrepreneurs who work internationally, emigrants and international (patchwork) families.
Mixed-national married couples should know that questions of matrimonial property law also play a central role in determining the inheritance quotas. The matrimonial property regimes such as community of accrued gains, separation of property or community of accrued gains under Spanish law have different effects on the inheritance quotas.
For marriages entered into since 29.01.2019, the EU Regulation on Matrimonial Property Regimes (EUTMR) applies.
This regulation governs which matrimonial property law is to be applied when a marriage is concluded abroad. The basic rule is that the law of the country in which the spouses have their first common habitual residence applies. If there is no common residence, the law of the nationality of both spouses applies. If there is also a lack of common residence, the law of the country with which the spouses are most closely connected at the time of the marriage applies.
Choices of law made after this date are governed exclusively by the Brussels I Regulation. For marriages concluded before 29.01.2019, the previous private international law applies. However, it is possible to make a choice of law, which is then again governed by the Brussels I Regulation (for more information on the Brussels I Regulation, click here).
There is a particular need for action if the applicable inheritance law does not coincide with the applicability of matrimonial property law. This can lead to problems when determining the inheritance quotas, as the provisions of matrimonial property law conflict with those of inheritance law.
Example:
The Spanish husband marries the German wife on 01.02.2019 in Germany and has his first common habitual residence with her there. The couple do not conclude a marriage contract with a choice of law.
- German matrimonial property law applies. In the absence of a marriage contract, the spouses are married under the statutory matrimonial property regime of community of accrued gains under German law.
The spouses change their habitual residence and move from Germany to Madrid/Spain and have two children. The German wife, who has her last habitual residence in Madrid/Spain, dies first without leaving a will.
- Spanish inheritance law is applicable to the succession due to the last habitual residence. According to this law, the children inherit according to the statutory succession, whereas the spouse is only entitled to a usufructuary right to part of the inheritance.
- This conflicts with the German regulation that in the event of the death of a spouse, the statutory inheritance share of the surviving spouse is increased by a quarter of the inheritance in accordance with Section 1371 (1) BGB. Spanish law does not recognize this flat-rate increase in inheritance rights, which in practice may lead to difficulties in obtaining a European Certificate of Succession with the correct quotas.
Conclusion:
Skilful estate planning and the correct handling of the EU Inheritance Regulation and the Brussels I Regulation can achieve the results that the spouses envisage.
If, for example, the German-Spanish couple has their habitual residence in Germany, German inheritance law would apply to the Spanish spouse, as well as to the German spouse, based on the general rule. They can then even draw up a joint spouse's will (Berlin will), which would otherwise not be possible under general Spanish law.
Germans with habitual residence in Spain/EU Inheritance Regulation
German nationals who have their last habitual residence in Spain should think about succession, even if it is an unpleasant topic for many.
If Germans living in Spain do not draw up a will with a choice of law in favor of German inheritance law, Spanish inheritance law automatically applies, although it should be noted that no uniform inheritance law applies in Spain, but that some regions (foral law areas) have their own inheritance law. Foral law areas include
- Aragon
- Balearic Islands
- Basque Country
- Galicia
- Catalonia
- Navarre
This can lead to undesirable results. This is because, under general Spanish inheritance law, the children of the deceased are so-called "no heirs" and cannot be entitled to a compulsory portion under the law of obligations, as is the case in Germany. This means that if there is no will from a German with habitual residence in Spain, the children inherit, whereby the spouse is only entitled to a usufructuary right to part of the estate. If this is not desired, a will must be drawn up.
In addition, the joint spouse's will (e.g. "Berlin will"), which is popular among Germans, is not effective in most regions of Spain.
This means that a spouse's will drawn up after August 17, 2015 is not valid in most regions of Spain if the last habitual residence is in Spain.
You should therefore think about drafting a will during your lifetime, even if many people find it difficult to deal with the subject during their lifetime. But it is precisely then that the right course can be set.
Bequests of movable and immovable property in Germany and holiday property in Spain
A bequest is a testamentary donation of a pecuniary advantage to another person without the latter being designated as an heir.
Example:
Testator E appoints his wife F as his sole heir and bequeaths an apartment building to his daughter and a stamp collection to his best friend A.
Although the daughter receives a property from the estate, she is not an heir. The same applies to the best friend A, who receives an item from the testator's assets. Nevertheless, from a legal point of view, he is not an heir either. Daughter T and boyfriend A both have a contractual claim to the performance of the bequeathed items. The daughter can demand that the apartment building be transferred to her and boyfriend A can demand the stamp collection. In the case of immovable property, i.e. immovable property, the transfer is carried out by relinquishment and registration in the land register. For this purpose, the parties involved must usually sign a notarial bequest performance contract.
A bequest must be made by testamentary disposition (will or contract of inheritance). In this way, the emergence of a community of heirs can be avoided. Nevertheless, the testator can bequeath individual items to persons without them becoming members of the community of heirs.
The bequest may also consist of a lifelong right of residence or a lifelong right of usufruct in a property being granted to a person.
Example: Spouses E and F have appointed each other as sole heirs. E is the sole owner of a single-family house in Dortmund. For his son S, E has made a bequest to the effect that in the event of E's death, S will receive the single-family home in Dortmund. In addition, E has ordered that this be done with the proviso that F is granted a lifelong right of usufruct should she survive him.
This arrangement balances the interests of the surviving spouse in the use of the property and the safeguarding of the estate for the son S.
Important:
In Germany, it is not legally possible to "bequeath" individual items. It is therefore not possible to testify as follows:
"My house is inherited by my wife, my car is inherited by my son, and my securities account is inherited by my daughter."
In practice, however, it happens that testators leave a handwritten will in this form. In this case, the will must be interpreted. This is because it is not clear whether the testator wished for the parties involved to become heirs or whether he wanted to distribute items to individual persons by way of legacy. This can lead to the fact that it is not clear what a certificate of inheritance should be and that a long probate court procedure must therefore be initiated to clarify the status of heirs. In order to avoid this, clear instructions should be found in the will, which make it legally clear to distinguish between the heir and the legatee. In the case of a notarial testamentary disposition that contains clear regulations, the heirs can in many cases even save themselves the trouble of applying for a certificate of inheritance.
If the testator has a holiday property in Spain, he or she can also order a bequest in this regard in his German will. If the beneficiary asserts his legacy, the heir is obliged to transfer the property to the legatee in Spain. The testator has numerous possibilities to create a legacy. He should also make use of this in his testamentary disposition.
The beneficiary must know that he can always assert the bequest, because it is subject to different limitation periods. Since the bequest is merely a claim under the law of obligations, the testator can order the execution of the will for the fulfilment of the bequest in order to minimise the risks resulting from the purely contractual character. It should be noted that the execution of a will can only be ordered by will or contract of inheritance.
The costs of the performance of the bequest must be borne by the complainant, unless the will contains a different order.
Inheritance law: Which law applies?
The applicable inheritance law for deaths after August 17, 2015 is generally based on the last habitual residence of the deceased, unless a choice of law was made in a will or a will was made before the cut-off date of August 17, 2015.
The applicable inheritance law is particularly relevant for determining the inheritance quotas or calculating the amount of the compulsory portion.
Inheritance tax: Different regulations in Germany and Spain
Inheritance tax law is governed by the national regulations of both countries, i.e. Germany and Spain, and not by the EU Inheritance Tax Regulation.
Particularly important: There is no double taxation agreement between Germany and Spain with regard to inheritance tax. It can therefore happen that the estate in Spain is taxed in both countries. Whether the tax paid in Spain can be offset against the German tax depends on the individual case and is generally only possible for real estate.
There may even be double taxation if, for example, the deceased was resident in Germany for tax purposes and the heir is also resident in Germany and the estate includes a property in Spain.
In Spain, there are different rules on inheritance tax depending on the region. The following are the current main allowances and tax reliefs in popular regions for spouses and children over the age of 21 with no previous assets in Spain:
| Statute of Autonomy | Allowance/reduction |
| Majorca |
|
| Andalusia |
|
| Valencia |
|
| Kanarische Inseln |
|
| Catalonia |
|
Depending on the location of the property in Spain, there are different tax laws, which must be determined for each individual case.
Comparison with Germany
The following inheritance tax allowances apply in Germany:
- Kinder: 400.000,00 Euro
- Spouses: 500,000.00 euros
In addition, there are special tax breaks or tax exemptions in both countries, for example for a family home.
An inheritance involving a property in Spain requires special attention, as different inheritance and tax regulations apply in both countries. It is important to check the regional regulations in Spain as well as the German tax allowances in order to avoid possible double taxation. Careful planning and checking can help to keep tax burdens as low as possible.
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Inheritance in Spain? Handling by a specialized lawyer with more than 15 years of experience!
Take advantage of the opportunity to organize the handling of your inheritance in Spain in an efficient and uncomplicated manner. Together we will find the right solution for you. Would you like to find out more about our services? Please contact us for a transparent consultation.
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Martina Bürsgens-Dyllong
Lawyer & notary public,
Specialist lawyer for inheritance law,
Abogada inscrita
- More than 15 years of experience in handling inheritance matters
- Competent representation by a specialist lawyer for inheritance law
- Specialized in inheritance acceptance in Spain and sale of inherited properties in Spain
- Speaks fluent Spanish
- Local representation throughout Spain
- Straightforward processing by telephone/e-mail possible on request