Spanish law when someone dies essentially deals with the rules for managing their estate and is much simpler if all documentation is in place
For anyone not domiciled in Spain, then the laws of succession of the country where they are nationals shall be applied. If a valid will has not been written that means that the rules of intestacy of that country shall apply.
Below is a brief summary of some of the more important rules of intestacy in the UK, Ireland and Spain.
Rules of Intestacy – England & Wales
Married couples or civil partners can inherit under the rules of intestacy in England and Wales. So if a couple has divorced, the ex-spouse will not inherit although informal separations do not prohibit from inheriting.
Where an estate is valued at more than £250,000, and the deceased has left no valid will evidencing how the assets should be distributed, any spouse or civil partner inherits:
- All the personal property and belongings of the person who has died, and
- The first £250,000 of the estate, and
- A life interest in half of the remaining estate (the spouse or partner can benefit from that half but not sell or spend it).
A distinction should be made where any property or bank accounts were owned ‘jointly’ by the couple as in those cases the assets belonging to the deceased would automatically pass to the surviving spouse.
The couple’s children will inherit one-half of an estate over £250,000. If there is more than one child that half is shared equally.
Rules of Intestacy – Scotland
The rules of intestacy in Scotland are rather different to those in England & Wales and are found in the Succession (Scotland) Act 1964 as amended.
Firstly, any debts owed by the deceased must be dealt with. The surviving spouse is the primary beneficiary under Scottish intestacy rules.
In Scotland the surviving spouse is entitled to what is known as ‘prior’ which means a right to any:
- House (up to a value of £300,000)
- Furniture (up to a value of £24,000)
- Cash (up to a value of £42,000 if children, or £75,000 if no children)
‘Moveable and ‘Heritable’ Estates
After this it should be noted that Scottish rules of intestacy distinguish between a ‘moveable’ and a ‘heritable’ estate. The former relates to cash, jewelry, car, shares etc. The latter relates to property and land.
Once the prior rights have been distributed to the surviving spouse, the moveable estate is distributed as follows:
- One-third to the surviving spouse or one-half if no children,
- One-third to the children or one-half if no surviving spouse,
- One-third to the free estate
The ‘free’ estate refers to that which is left after debts, prior rights and legal rights. The free estate should be distributed equally among the children or if no children then jointly to brothers and sisters and parents followed by brothers and sisters solely then parents solely…and so on down the line of succession until the Crown.
Should a husband and wife or civil partners die together in circumstances where it is not possible to determine who predeceased who, then for the purposes of intestacy in Scotland both are said to have predeceased the other when considering the rights of beneficiaries to their mutual estates. As a result each is ignored when considering the legitimate heirs to each others’ estate.
Should there have been a judicial separation then the husband is barred from inheriting the wife’s estate but the reverse does not hold and a wife would not be so barred. Divorced partners do not benefit from each others estate.
It is important to note that under Scottish inheritance law, a testator does not have 100% freedom of disposition of personal assets and a beneficiary may choose to inherit under the laws of succession or under the will (if named as a beneficiary). However, the beneficiary must renounce one or the other.
Rules of Intestacy – Northern Ireland
The rules of intestacy in Northern Ireland may be summarised as follows –
If there are no children (or other relatives):
- The surviving spouse or registered civil partner inherits all of the estate
If there are children:
- The surviving spouse or registered civil partner inherits personal assets such as car, jewelry, art collection, household goods
- Equity in the estate (inc. property etc) up to £250,000
- A life interest in one-half of any remainder if one child or one-third if more than one child
If there are no children/grandchildren but parents alive:
- The surviving spouse inherits personal assets, the estate up to a value of £450,000 and one-half of the remainder (not a life interest)
- Parents inherit the remaining half
- If parents no longer alive then brothers and sisters share the remaining half equally
In Northern Ireland as in other jurisdictions in the UK, a divorced spouse receives no interest in the estate but a merely separated spouse would.
Rules of Intestacy – Republic of Ireland
In the Republic of Ireland it should be understood that whether or not a will has been created there are minimum guarantees for surviving spouses that ensure that they will inherit a minimum portion of the estate.
So even where a will has been made, the following applies:
- Where there are no children of the marriage a spouse is entitled to one-half of the estate
- Where there are children a spouse is entitled to a minimum of one-third of the estate
- If there is a surviving spouse, no children but there are surviving grandchildren then the spouse is entitled to one-half of the estate
In general, where there is no valid will, the following rules of intestacy apply:
- Where there are no children, the spouse inherits the entire estate
- Where there are children and a surviving spouse, the spouse inherits two-thirds of the estate
Rules of Intestacy – Spain
Spanish succession law operates a system of ‘forced heirs’ and only a minor portion of any estate may be freely distributed by the testator.
Should a person die intestate in Spain and the Spanish rules of intestacy apply then the first matter than needs to be defined is the size of the estate. If the deceased was married and the marriage was classified as a ‘sociedad de gananciales’ (the most typical in Spain) then under Spanish law, assets obtained during the life-time of a marriage are shared.
Accordingly, the deceased spouse may transmit only one-half of those assets upon death.
Other assets accumulated outside of the marriage – for example before the marriage or a personal inheritance from a parent – are added to this one-half to form the inheritance.
Rules for the Distribution of Assets
Spanish law stipulates that in the absence of a valid will assets should be distributed as follows:
- Equally to any children of the marriage (or if any child has predeceased the parent then to their children per stirpes),
- If no children, equally to surviving parents,
- If no surviving parents then to the closest of other surviving ascendants (uncles, aunts, grandparents),
- In the absence of surviving ascendants, to the surviving spouse,
- If no surviving spouse then to brothers and sisters
The outcome described above may be completely at odds with the preferred outcome and so it is important to make a will that covers Spanish assets to prevent this occurring.