Jurisdiction and applicable Law of Inheritance Litigation involving foreign nationals in Spain
This article aims to explain the essential elements of jurisdiction and the law applicable to inheritance disputes. This article does not constitute legal advice. Rather, it is simply a brief guide to ease understanding of these complex matters.
Spanish private international law provides a number of solutions for hereditary succession when it contains a foreign element. Note the complexity of this matter and that its coexistence with different legal systems is not always amicable because of the various diverse issues related to inheritance.
We highlight areas common to the analysis of any case of private international law to provide a general understanding of the subject.
First, we address which Spanish courts have jurisdiction to hear an inheritance matter. Then, we move on to consider applicable laws. Finally, we underline the extraterritorial validity of foreign judgments in matters of inheritance.
International jurisdiction
First, we consider the question of which Spanish courts have jurisdiction to hear issues of hereditary succession. Article 22 of the Organic Law 6/1985 of July 1 on the Judiciary answers this question. This provision establishes the circumstances in which Spanish courts have jurisdiction in civil matters.
- There are cases that are not subject to the exclusive jurisdiction of the Spanish courts. Therefore, Spanish courts may have to acknowledge foreign judgments.
- Spanish courts may accept both tacit and explicit submissions. For express submission, Article 55 of the Spanish Civil Procedure Act requires parties to nominate “precisely the constituency to which courts they will submit.”
- Judges and courts may learn of the proceedings when the defendant’s address is in Spain.
- Finally, there are two special forums. The first allows Spanish courts to consider the litigation when the last domicile of the deceased was in Spanish territory. The second confers jurisdiction on the Spanish courts when at least one property of the deceased, an object of the inheritance dispute, is located in Spanish territory.
We end this introduction to international jurisdiction in matters of inheritance by pointing out the governing legal principle of Judicial Unity of Succession in Spanish law. This principle refers to the situation where a single judge hears the entire inheritance dispute, although the above rules may allow various courts to have jurisdiction.
Applicable law
Once elucidated the basic elements of international jurisdiction of the Spanish courts, the question should then be which law applies to this inheritance litigation. Spanish private international law refers to Article 9, paragraph 8 of the Civil Code.
The provision states:
“Succession on the ground of death shall be governed by the national law of the decedent at the time of death, independently of the nature of the assets or the country where the assets are located. However, testamentary dispositions and succession covenants made according to the national law of the testator or of the covenanter at the times of their execution shall continue to be valid even if a different law governs the succession, except for the legal portions, if any, which shall conform to the law governing the succession. The law that regulates the effects of the marriage shall govern the rights of the surviving spouse granted by operation of law; however, the legal portions of the descendants shall be respected.”
From the content of this precept, we point out the following principles:
- The succession if intestate will be subject to the national law of the deceased at the time of death, regardless of the assets that comprise the estate of the deceased or the country in which the assets are located.
- Now, if the deceased had left a will, it would be subject to the national law, and it may be different from the law applicable at the time of death. The directive of the national law of the deceased at the time of death limits this regulation.
For example, imagine a case where a British citizen has a testament according to his national law, which does not include the system of continental European law, and he obtains Spanish citizenship and then dies.
In this case, the will of a Spanish citizen would be subject to British law, except for the portion of the inheritance over which the testator does not have free control that respects the provisions of Spanish law. The consequences in this case could mean a change that would affect two-thirds of the assets of the will, redistributing the inheritance among the children or depriving third party beneficiaries of all or part of it provided for in the will.
Finally, we would like to introduce the possibility that an additional, distinct law may apply to determine the rights of the surviving spouse. This law is none other than the law governing the effects of marriage. One possible outcome would be the application of three different national laws. However, the principles of Unity of Succession and International Harmony of Inheritance temper these cases and aim to simplify this type of litigation.
Conclusion
Succession litigation of foreign nationals in Spain or Spanish nationals who have foreign real-estate assets requires an analysis to determine which jurisdictions should hear which parts of the case and which law applies while keeping in mind the possibility that Spanish judges may have to apply foreign laws and vice versa.
Nicolás Melchior
