To determine which law governs the succession of a British citizen with real estate in Spain, it is essential to consider European Succession Regulation (EU) No. 650/2012 (ESR), which regulates cross-border successions. This regulation modifies the previous rule that referred to the deceased’s national law and establishes the principle — unless an explicit choice of another law is made — that the law of the deceased’s habitual residence applies. However, this regulation only applies from 17 August 2015, so it is necessary to differentiate successions occurring before and after that date, as well as to evaluate whether the deceased’s estate is limited to real estate in Spain.
Successions before 17 August 2015
If the death occurred before the ESR came into force, Spanish lex fori applies, indicating that succession should be governed by the personal law of the deceased (Art. 9.8 of the Spanish Civil Code). However, English law establishes a fragmentary succession system: it applies personal law to movable property and the law of the country where immovable property is located. Therefore, if the British deceased owns real estate in Spain, English law refers to Spanish law, which may cause conflicts if the will selected English law as applicable. This is because the Spanish Civil Code imposes restrictions on succession, such as mandatory respect for descendants’ legitimate share and reserved assets if the spouse remarries (Arts. 808 and 968 CC).
This principle was confirmed by Judgment No. 18/2019 of 15 January 2019, which applied Arts. 12.2 and 98 CC to recognize a legitimate child’s right to challenge the testamentary disposition and reduce the portion of the inheritance affecting their legitimate share. The ruling establishes that Spanish law governs the entire succession when there is a stronger connection to Spain than to the nationality of the deceased, especially if the deceased resided and died in Spain, where both their assets and heirs are located.
Successions from 17 August 2015 onwards
With the entry into force of the European Succession Regulation, if the testator expressly chooses English law for succession (professio iuris), the referral of English law to Spanish law is no longer valid, and the succession will be governed exclusively by English law.
On the other hand, if the British citizen residing in Spain has not chosen the applicable law, Spanish law will automatically apply, as it corresponds to their habitual residence. This means the succession will be subject to the limitations of the Spanish Civil Code, including rules on legitimate share and reserved assets.
It should be noted that, although the United Kingdom did not ratify the European Succession Regulation, EU countries must apply it to British citizens with habitual residence in their territories.
Conclusion
The European Succession Regulation establishes two possible scenarios for the cross-border succession of a British citizen:
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Spanish law applies if the deceased’s habitual residence is Spain.
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English law applies if the testator expressly chose it (professio iuris), without referral to Spanish law, even if the only assets are located in Spain.
