Key Takeaways
- Spanish forced heirship reserves two-thirds of your estate for descendants. One-third (legítima estricta) is split equally; another third (mejora) can favour one child. Only the final third is freely disposable.
- EU Regulation 650/2012 provides an escape route. By including a professio juris clause in your will, you can apply your nationality’s inheritance law instead of Spanish rules.
- Without a nationality election, Spanish law applies by default. If you’re habitually resident in Spain and die without specifying, forced heirship overrides your wishes.
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Key Takeaways
- Spanish forced heirship reserves two-thirds of your estate for your children (the legítima) — your will only controls the remaining freely disposable third
- The fix is one sentence: an Article 22 EU Regulation 650/2012 choice-of-law election explicitly naming UK law, which must appear in the will text
- Brexit did not affect this provision — the election still works for British nationals living in Spain
- Most at risk: blended families where children from a first marriage have a mandatory claim, estranged children who cannot easily be disinherited under Spanish law, and unmarried partners who have no forced-heirship rights at all
- Adding the clause costs nothing beyond the standard EUR 300–600 to make or update the will; doing nothing defaults to Spanish law
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The Opt-Out: How to Keep UK Testamentary Freedom
The fix is one clause in your Spanish will.
EU Succession Regulation 650/2012, Article 22, allows any person to elect the law of their nationality to govern their succession. For British nationals, this means electing English and Welsh law, Scottish law, or Northern Irish law — depending on where you’re from.
The election must be explicit, in writing, and in your will. It cannot be implied. A general statement that you want your spouse to inherit everything is not sufficient. The specific clause is required:
“In accordance with Article 22 of Regulation (EU) No. 650/2012, I declare that I choose the law of England and Wales to govern the succession of my entire estate.”
With this clause, Spanish forced heirship does not apply to your estate. You have full UK testamentary freedom, including for your Spanish assets. Your Spanish will then distributes your estate exactly as you specify, without any portion reserved for your children.
Post-Brexit note: The Regulation continues to apply to British nationals living in Spain. Brexit did not affect this provision. Spain applies the Regulation to all residents regardless of the deceased’s nationality.
(Confirmed February 2026.)
Four Scenarios Where Forced Heirship Creates Real Problems
Blended families. A second marriage where each spouse has children from a previous relationship. Without the choice-of-law election, the deceased’s children from a first marriage have a mandatory claim to two-thirds of the Spanish estate. This legal claim takes priority over the new spouse’s wishes, regardless of the relationship between the step-children and the deceased.
Estranged children. Under Spanish law, you can’t disinherit an adult child except in limited situations (causa de desheredación) — for example, serious mistreatment or certain criminal acts against the parent. Even if you haven’t spoken for decades, they can still have a protected legítima claim. Under UK law you can usually leave them nothing; under Spanish law you generally can’t, unless you’ve made the Article 22 election.
Unmarried partners. A surviving unmarried partner has no automatic right under forced heirship. The legitima prioritizes children, then parents. If the deceased has children, an unmarried partner can inherit only from the libre disposicion third — and only if the will specifically names them. Without a will, an unmarried partner inherits nothing.
Property that can’t be easily divided. If the estate primarily consists of real estate (as it often does for Costa del Sol expats), children inheriting two-thirds creates a co-ownership situation immediately. The surviving spouse and the children jointly own the property. Any decision about selling requires agreement from all co-owners. If the children want to sell and the surviving spouse doesn’t — or vice versa — the dispute must be resolved through negotiation or court proceedings.
What the Choice-of-Law Election Costs
Nothing beyond the EUR 300-600 for making or updating a Spanish will. The choice-of-law clause is one sentence. If you already have a Spanish will without the clause, a new testamento abierto costs the same as the original.
If you’ve never had a Spanish will, see How to Make a Spanish Will: Step-by-Step.
If you have a Spanish will and you’re unsure whether the election clause is present, your Spanish notary or lawyer can retrieve the document and confirm. The registry query (Certificado de Ultimas Voluntades) costs EUR 3.70.
The Decision
Every British expat who owns property in Spain and has children faces a binary choice:
- Include the choice-of-law election in the Spanish will — and have full UK testamentary freedom over your Spanish assets.
- Don’t include it — and accept that Spanish forced heirship will apply, reserving two-thirds of your estate for your children in the manner described above.
There is no third path. Doing nothing defaults to Spanish law.
For most British couples who own a property together and want the surviving spouse to inherit outright, option 1 is the right answer. For families where leaving two-thirds to children from day one is acceptable or even preferred, option 2 may be fine.
The difference is knowing which one applies to you.
Spanish succession law confirmed February 2026. EU Regulation 650/2012 applicability confirmed February 2026. Worked examples use indicative asset values; actual succession calculations depend on total estate composition at time of death.
Frequently Asked Questions
Where can I find more guides on this topic?
See our Complete Spanish Wills Guide for the full picture, or browse all guides at guides.waypointsur.com.
