There are different regimes regarding inheritance in the territories of the Basque Country, Navarra, Cataluña, Balearic Islands, Aragón, and Galicia, which since the new EU Regulation on successions entered into force ( 17/8/2015) have importance to non-Spaniards living in these territories, as their succession is going to be ruled by the laws of the last residence unless they have previously chosen the law of their own nationality.
In those countries which have different territorial laws, such as is the case in Spain (Foral Laws), the criteria to decide which of them to apply to an inheritance is governed by the laws of each country, but if those laws cannot resolve the conflict, the last habitual residence will be used to determine the applicable law to the succession.
In Spain, such conflicts are resolved by “ Vecindad Civil”, which is a concept only applicable to Spaniards, so it serves no purpose in resolving this issue when foreigner’s successions are involved.
So if the inheritance is that of a non-Spaniard, whose last habitual residence was in one of those territories, and who had not made a choice of law , the inheritance will be ruled by the territorial law.
The new EU regulation establishes the last residence of the deceased as the main criteria to determine the applicable law, and the same criteria, habitual residence, is used in the Spanish Civil Code when the personal civil law ( «comun» o «foral») can not be established by the nationality.
This problem is completely new. Some authors claim that the Spanish Civil Code will be applied to such successions, but there are already resolutions from the Land Registry authority that confirm the applicability of the territorial local laws, and therefore, this must be taken seriously.
Foreigners living in Spain who have not chosen the law of their nationality to be applied to their succession, may be bound by the territorial law (foral) without realising it, and maybe without wanting it.
This is important in issues such as reserved share, legal succession or succession rights of the surviving partner in the territories of the Basque Country, Navarra, Cataluña, Balearic Islands Aragón and Galicia.
There are also different possibilities at the time of ordering the inheritance by way of joint wills or by agreements as to succession, that are not permitted in the common Spanish law, including the possibility of giving the power to name the inheritor, or to distribute the assets to a person other than the testator (fiduciario or comisario), that are restricted under the common Spanish law.
There is also a limitation in the liability for the deceased’s debts in The Basque Country and Navarra.
Legal issues arise constantly, as a result of the fact that regional civil laws may in some cases establish that their rules only apply to people with the corresponding » Vencidad Civil» which is understood as meaning only Spaniards and only those with the corresponding «Vecindad Civil». A foreigner does not have » Vecindad Civil». This led to cases where some agreements as to succession, ruled in the regional civil laws ( and forbidden in the Spanish common civil law) were not valid if made by foreigners as they did not have the corresponding » Vecindad Civil». For example, in a Balearic succession of a foreigner, resident in Majorca, it was stated by the Land Registry Authority that the so called «definición» ( a renunciation of the reserved share in exchange for some gift received from the testator) was only to be applied to Spaniards with «Vecindad Civil» from Baleares as the wording used in Balearic law was » Vecindad Civil» and it was based on the island tradition. That resolution ( DGRN 24/05/2019) was confirmed by court.
More recently, 20/01/2022, the same authority resolved in the same way for an agreement as to succession made by a foreigner in Galicia.
This authority ( DGRN/DGSJFP) regretted the inconvenience that the regional civil laws had still not yet been updated and coordinated with the EU 650/2012 Regulation.
It is clear, from all points of view that foreigners must be cautious regarding regional civil laws, either when they are applied without their consent or when they are voluntarily used by the foreigner in a last will, or in an agreement as to succession.
Contact us for specific personal advice for your individual case