9 September 2026

Estate Planning and Inheritance in Spain: What American Buyers Need to Set Up

Spain doesn't let you leave your estate to whoever you choose, the way most US states do. Its forced heirship rules — the legítima — reserve two-thirds of your estate for your children by default, and that default is triggered by where you habitually live, not by your citizenship. You can opt back into your own state's inheritance rules, but only if you do it deliberately, in writing, in a properly drafted will, before you need to.

A note before you dive in: inheritance and tax rules shift — sometimes quickly. What follows reflects our latest research, but you should always confirm the current specifics with a licensed Spanish inheritance lawyer before acting on them.

Why Spanish Succession Law Applies to You at All

Most American buyers assume that owning a villa in Estepona or an apartment in Benahavís is simply a property matter — you buy it, you own it, you leave it to whoever you name in your will back home. Inheritance law works on a different trigger than that.

Under EU Regulation 650/2012 (known informally as Brussels IV), the default rule is that the law of your last habitual residence at the time of death governs your entire succession — not the law of your nationality, and not simply the law of wherever a given asset sits (eur-lex.europa.eu). If you retire to Marbella and Spain becomes home, Spanish succession law applies to everything you own worldwide, not just the Costa del Sol property. If you keep your primary residence in the US and the Spanish property is a second home, your worldwide estate stays governed by US law — but the Spanish real estate itself still passes through Spanish inheritance procedure and Spanish inheritance tax when it changes hands, simply because that's where the asset is (source: International Tax Legal Spain). Either way, a plan drafted only under US assumptions leaves a gap.

The Legítima: Two-Thirds Isn't Fully Yours to Give Away

The core surprise for Americans is the legítima, Spain's forced heirship regime. Under the Spanish Civil Code, when a Spanish resident dies without a valid choice-of-law election, two-thirds of the estate is reserved for children and other descendants — you cannot simply write them out, however you might have done under a US will (as of August 2026; source: CostaLuz Lawyers).

That two-thirds splits further into three named portions. The tercio de legítima estricta — one-third of the estate — must be divided equally among all children, no discretion allowed. The tercio de mejora, another third, can still be redirected among descendants (favoring one child over another, for instance) but has to stay within that group. Only the final third, the tercio de libre disposición, is genuinely free to leave to anyone: a spouse, a charity, a friend, whoever you choose (source: CostaLuz Lawyers, legítima glossary). For a buyer used to the complete testamentary freedom common across most US states, that's a real constraint to plan around rather than discover later.

Choosing Your Own State's Law Instead

Brussels IV gives you a way out of the default, and it's the single most useful tool in this whole area. Article 22 of Regulation 650/2012 lets you make an explicit election — a professio iuris — choosing the law of your nationality to govern your succession instead of the law of your habitual residence. Made correctly, this election lets an American buyer sidestep the legítima entirely for Spanish-situated assets (source: EUR-Lex, Regulation 650/2012).

The wrinkle for Americans specifically: the US doesn't have a single national succession law the way, say, England and Wales does. Succession rules are set state by state. So the election has to name a specific state — "the law of the State of California" or "the law of the State of Florida," not simply "United States law" — for it to hold up (as of August 2026; source: CostaLuz Lawyers, Brussels IV). This has to be stated expressly in a will, ideally the Spanish one covering your Spanish assets, and it's worth revisiting if you later relocate between states — an election naming Texas law doesn't automatically follow you to New York. Getting this clause right, in the right document, is exactly the kind of detail a Spanish inheritance lawyer earns their fee on.

Why a US Will Alone Doesn't Get the Job Done Here

A will drawn up by your estate attorney back home is not automatically usable in Spain. Recognizing a foreign will typically means an apostille, certified translation, and a Spanish court or notarial process to have it accepted — slower and more expensive than most buyers expect, and it lands on your family at exactly the moment they can least afford delay (source: Waypoint Sur).

Standard practice among lawyers who work with American clients is to draft a second, separate Spanish will — one that covers only the assets located in Spain, includes the state-law election described above, and carries a revocation clause limited specifically to Spanish assets so it doesn't accidentally cancel your US will. The two documents are meant to sit side by side, each governing its own territory, drafted to be consistent with each other rather than in conflict. If you haven't yet worked through the broader purchase process, our guide on (how-to-buy-property-spain-american-citizen) covers where a Spanish will typically fits into the timeline.

Trusts Don't Cross the Atlantic the Way You'd Expect

If your estate plan back home leans on a revocable living trust — a common structure for American homeowners looking to avoid probate — it's worth knowing upfront that Spain doesn't recognize the trust as a legal category the way US common law does. Spanish law has no direct equivalent, and a Spanish-situated property held in or distributed through a US trust doesn't map cleanly onto Spanish civil law concepts.

In practice, this creates real ambiguity. When a trust distributes Spanish assets to a beneficiary, Spain's tax authorities may treat the transfer as a lifetime gift rather than an inheritance — a different tax event with different rules — though in practice the tax agency has often assessed it as inheritance instead when the distribution is clearly tied to the original owner's death (source: International Tax Legal Spain). Which way it falls can depend on details specific to your trust and how it's funded — the type of trust, who holds the power to revoke it, and how the Spanish asset was placed into it all matter — so this is genuinely a "your situation, not the general rule" question. If your estate plan involves a trust, that's worth a direct conversation with both a Spanish lawyer and your US estate attorney before you rely on any general description of how it will be treated, including this one. It's also worth reading alongside our notes on (property-taxes-spain-american-owners) and, since inheritance and estate tax sit outside the existing tax treaty, (us-spain-tax-treaty-double-taxation) — Spain and the US do not currently have a treaty covering inheritance or estate tax specifically, so relief has to come from planning rather than a treaty credit.

Andalusia's Inheritance Tax Relief for Close Family

The tax side has genuinely good news for close family. Andalusia — the region covering Marbella, Estepona, and Benahavís alike — applies a €1,000,000 reduction per heir to the taxable base for spouses, children, and parents (Groups I and II), and on top of that, a 99% reduction on whatever remains above that threshold. In practical terms, a spouse or child inheriting property assessed well into seven figures ends up with a very small final tax bill (as of August 2026; consolidated under Decree-Law 1/2019 and Law 5/2021; source: Tejada Solicitors).

This isn't limited to Spanish residents, either. A 2014 EU court ruling and a 2018 Spanish Supreme Court decision extended these regional reductions to non-resident heirs, including those living outside the EU and EEA — which covers American heirs directly. Before those rulings, a non-resident inheriting the same Andalusian property would have been stuck with the less generous state-level rules; that gap has since closed (source: Lexology). It's a meaningful reason the region has become genuinely favorable for cross-border family succession, not just for buying and holding.

None of this replaces a conversation with a lawyer who can look at your specific family structure, your home state's rules, and how they interact with Spanish law — the stakes and the details are too particular for a generic guide to settle for you. But going into that conversation already understanding the legítima, the professio iuris election, the separate-will convention, and where trusts get complicated will make it a much shorter and more productive one.

At Luumare Estate, we work alongside independent lawyers and tax advisors for our international buyers, and helping you line up the right specialist at the right stage of a purchase — including estate planning, well before it's urgent — is part of how we support a transaction from offer to keys. Take a look at our services, or get in touch and we'll help you find the right people to talk to.