Grandparents, grandchildren, and the generation some wills leave out.

More families than one might expect, particularly among the international community living along the Costa Blanca, are asking a similar question these days. Could a person leave a meaningful share of their estate directly to their grandchildren, bypassing their own children in the process?

The first thing to establish, before anything else, is which country’s succession law actually applies. This is not automatically decided by nationality. Under Regulation 650-2012 of the European Union, the law that applies to a person’s estate is, by default, that of their last habitual residence, unless the testator has expressly chosen the law of their nationality instead.

For someone who has lived in Spain for years and has never made that choice, Spanish succession law will very likely apply. And that changes the picture considerably. Unlike countries such as England and Wales, where a person can generally leave their estate to whomever they wish, Spanish law protects children as forced heirs.

Under the Civil Code of Spain, an estate is divided into three equal thirds. The first one must go to the children, in equal shares, with no exceptions worth relying on. The second one is reserved for children or other descendants — a category wide enough to include grandchildren. Spanish courts, including the Supreme Court, have confirmed that this second third can be awarded entirely to a grandchild, even while their own parent is alive. The third and final portion carries no restriction at all.

Put together, someone whose estate is governed by Spanish law could direct up to two thirds of it towards their grandchildren, while their children would still receive their full protected share of the remaining third.

There is a further wrinkle. If those grandchildren are under 18 years old, their inherited assets would typically end up managed by their own parents — precisely the people the arrangement was meant to bypass. Naming a separate administrator in the will, if done properly, avoids this outcome.

None of this (including the question of which law applies in the first place) is something to assume from general impressions about where someone happens to hold a passport. Getting it right calls for looking at each case individually. At White-Baos Lawyers we have been advising British expats for almost two decades. If you want your will properly drafted, and your wishes genuinely respected, reach out to us today.

You may be interested in the following services and articles:

Gift that affects the inheritance. Reduction of excessive gifts in Spain. Legitimate share of forced heirs. Legal advice.

Unity and universality of succession in international inheritances. Spain. One single law for the entire estate. Legal advice.

Inheritance Tax payment from the deceased’s bank account. Inheritances in Spain. Is it possible?

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

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