Do I need a Spanish will as a US retiree in Spain?

Most Americans arrive in Spain with succession already handled at home: a will, perhaps a revocable living trust, beneficiary designations on retirement accounts, and a clear idea of who gets what. The natural assumption is that those documents travel with you. They largely do — for your US assets. What surprises many non-lucrative visa holders is that the moment Spain becomes the place where you actually live, a European regulation steps in and decides which country's law governs your whole succession. Left untouched, the default answer is Spanish law. That single fact is why a short Spanish will, drawn up correctly, is one of the highest-value pieces of paperwork a US retiree can put in place after moving.

This guide explains the mechanics so you know what to ask before assuming your US plan is enough. It is general information, not legal, tax or estate-planning advice, and it does not replace coordinated advice from a US estate attorney and a Spanish lawyer. But it should make the conversation with both far more productive.

"The clients who get caught out are not the careless ones — they are the well-organised Americans who assume a good US will is the end of it. In Spain the first question is which law applies, and that is decided by where you live, not by where you signed your documents. A one-page choice of law, made early, is often the whole fix."

The default: Spanish law if you die living here

Since August 2015, cross-border successions in most of the European Union are governed by an EU regulation on succession, Regulation (EU) No 650/2012, widely known by its nickname "Brussels IV." Its central rule is deceptively simple: the law that governs your succession as a whole is the law of the country where you were habitually resident at the time of death. There is no splitting between "movable" and "immovable" property, and no separate rule for each asset — one law applies to the whole estate.

For a US retiree who has settled in Málaga, Valencia or Alicante, built a daily life here, and holds a TIE, the country of habitual residence at death will normally be Spain. So unless you do something about it, Spanish succession law will govern how your estate passes — including your US brokerage account and your Spanish apartment alike, at least as far as the civil rules of inheritance are concerned. Habitual residence is a factual test about where your settled life is, not a box you tick, which is exactly why a retiree who has genuinely relocated cannot assume their old home-state law still controls.

Choosing US law: the Brussels IV election

The Regulation gives you a way out of the default, and it is the single most useful tool for US retirees. Article 22 lets a person choose, in their will, the law of a State whose nationality they hold — either at the time they make the choice or at the time of death — to govern their succession instead of the law of their habitual residence. Lawyers call this a professio juris, a choice of law.

Two features make this powerful for Americans. First, the Regulation has "universal application": the law you choose applies even if it is not the law of an EU Member State. A US citizen can therefore validly choose US law, even though the United States never signed up to the Regulation. Second, because the United States is a country with several legal systems, the choice points to the law of the relevant US state — typically the state you are a national of and connected to, such as Florida, California, New York or Texas. That state's freedom-of-testation rules can then govern who inherits, rather than Spain's reserved-share rules.

The catch is that this only works if the choice is made clearly and validly, in a will, before it is needed. A choice of law that is merely assumed, or buried ambiguously in a foreign document a Spanish notary has to interpret, invites exactly the delay and dispute you were trying to avoid. This is why the election is normally written expressly into a Spanish will — so that when the time comes, the notary and the heirs are reading an unmistakable instruction in the right form.

Forced heirship, and why it surprises Americans

The reason the choice of law matters so much is what Spanish civil law does if it applies: it imposes forced heirship. A defined portion of the estate, the legítima, is reserved by law for certain heirs — chiefly children and other descendants — and cannot be freely given away to someone else. A surviving spouse also has protected rights: under article 834 of the Civil Code a spouse who inherits alongside children takes the usufruct of one third of the estate — a lifetime interest, not ownership, arising automatically rather than by choice. That is a specific kind of interest with specific US consequences, which we examine in the usufruct and US gift and estate tax; if the death has already happened, the practical question may be whether to commute the widow's usufruct into cash, assets or income in the partition. In other words, Spanish law limits how much of your estate you can direct as you please.

To an American used to near-total freedom of testation, this can be a shock. A plan that leaves everything to a spouse, skips an estranged adult child, benefits a second family, or funds a charity may run straight into Spanish reserved shares if Spanish law governs. Note also that Spain's rules are not uniform: several regions (for example the Basque Country, Navarra, Catalonia, the Balearics, Galicia and Aragón) have their own civil-law traditions with different reserved shares, so "Spanish law" is not a single answer either. For many US retirees, choosing their home US state's law under Article 22 is precisely how they preserve the freedom of disposition they always assumed they had.

Choice of law does not change the tax

Here is the distinction that trips people up most, and it matters commercially: the Regulation decides civil succession — who inherits, whether forced heirship applies, how the estate is administered. It does not decide tax. And there is one input into the tax that no will on either side of the Atlantic can repair afterwards: whether the surviving spouse holds a US passport. If not, the US marital deduction is denied, and the cure has to be taken before you move — see your non-citizen spouse, the marital deduction and the move to Spain. Spanish inheritance tax, the Impuesto sobre Sucesiones y Donaciones, is an entirely separate system. Choosing US law to govern your succession does not switch off Spanish inheritance tax, and it does not switch off Spanish reporting.

Spanish inheritance tax is charged to the person who inherits, and whether Spain can tax depends on things like the heir's residence, the deceased's residence, where the assets sit and which regional rules apply. A US child who never moves to Spain can still face a Spanish filing on a Málaga apartment they inherit. Regional relief matters too — Andalucía, where the Costa del Sol sits, has generous close-family relief in many cases, but that is a tax question, not a Brussels IV question. We cover the tax side in detail in our guides on Spanish inheritance tax for expats, on US estate tax versus Spanish inheritance tax, and on the Spanish inheritance process for American heirs. Treat the will and the tax as two coordinated projects, not one.

Question	Decided by	What the choice of US law does
Who legally inherits	Succession Regulation (Brussels IV) — civil law	Can apply your US state's freedom of testation instead of Spanish forced heirship
Forced shares (legítima)	The governing civil law	Removed if a US "no forced heirship" state law is validly chosen
How much inheritance tax is due	Spanish tax law + regional rules	Nothing — tax is unaffected by the choice of law
US estate tax exposure	US federal (and state) law	Nothing — US rules still apply to a US citizen's worldwide estate

One will or two? Coordinating US and Spain

Because the Regulation applies one law to the whole succession, you do not strictly need a separate will for each country. But in practice many US retirees keep their US will for US assets and add a Spanish will limited to Spanish assets. Done properly, this speeds up the Spanish side enormously: a Spanish notarial will can be acted on locally without translating and legalizing a US will and US probate paperwork, which can otherwise add months and cost.

The critical drafting point is coordination. A Spanish will must be written so it does not accidentally revoke your US will, and your US documents should be reviewed so they do not contradict the Spanish will or the choice of law. Get this wrong and you can end up with two documents fighting each other, or a later will silently cancelling an earlier one. This is also where a US revocable living trust needs Spain-specific review: trusts are not a native Spanish concept, and a structure that elegantly avoids US probate can create classification, registry and evidence friction in Spain. The goal is a single, consistent plan expressed in two coordinated documents — not two plans that happen to exist in two countries.

How a Spanish will actually gets made

A Spanish will for a foreigner is usually an open will (testamento abierto) signed before a Spanish notary. You do not need perfect Spanish: the will is typically prepared in a dual-column format, Spanish alongside English, and the notary confirms you understand it. Once signed, the notary registers the existence of the will (not its contents) in the central Registro General de Actos de Última Voluntad, the national wills registry. That registry is what your heirs' lawyer checks after a death to confirm which will is the last valid one — which is exactly why a registered Spanish will is so much faster to act on than a US document nobody in Spain has on file.

The practical sequence is straightforward: gather the essentials (who your heirs are, what your Spanish assets are, and your intended choice of law), have the will drafted and reviewed against your US plan, sign before the notary, and keep a copy with your other Spanish records. It is a natural item to fold into the wider "settle in" phase after arrival, alongside your padrón, TIE and banking — see our first 90 days checklist for how the pieces fit together. Notary and drafting costs for a simple foreigner's will are modest relative to what a messy cross-border estate costs the family later.

Do not confuse this with lifetime incapacity planning. A will acts after death; it does not let someone manage a Spanish bank account, speak to a notary or coordinate care while you are alive but unable to sign. That is why many retirees pair the will with a Spanish preventive power of attorney and healthcare-instructions plan.

There is also a practical layer that sits in between the two, in the first hours rather than the first months. Spanish public-health law asks a family to choose burial, cremation or repatriation within roughly 48 hours, long before any will is read or any consular paperwork exists. A will decides who inherits; it does not tell anyone what you would have wanted done, or give them the authority to arrange it. See what happens when a US retiree dies in Spain for that window and how to prepare for it.

Common mistakes we correct

The first is assuming a US will "just works" in Spain. It can eventually be used, but only after translation, legalization and evidence of validity — slow and expensive at the worst possible moment. The second is not making a choice of law at all, and so falling into Spanish forced heirship by default when the family assumed complete freedom of disposition. The third is confusing the two systems: believing that choosing US law also removes Spanish inheritance tax. It does not; the tax is separate and can still apply.

The fourth is a Spanish will that accidentally revokes the US will, or a US will updated later that quietly overrides the Spanish choice of law — a coordination failure, not a drafting typo. The fifth is dropping Spanish real estate into a US trust without Spain-specific advice, then discovering that Spanish notaries, banks and registries do not read the structure the way US counsel intended. The through-line is always the same: in a cross-border estate, the expensive problems are structural and are cheapest to fix while you are alive, organised and able to sign.

The sixth is the one that hides best, because it is not a mistake in the will at all: the assets that never reach the will. Most American retirees carry transfer on death and payable on death designations on their US brokerage and bank accounts, signed years ago to avoid US probate, and they do not mention them to the notary because in their mind those accounts are already handled. A will that divides the estate equally and a beneficiary form that sends the largest account to one child are two documents that disagree, and they will not settle it between themselves. See TOD and POD accounts for Americans in Spain — Spain has no probate for those forms to avoid, and Spanish inheritance tax follows the person who receives.

Sources reviewed July 2026: Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement in matters of succession, including Article 4 (general jurisdiction / habitual residence), Article 20 (universal application), Article 21 (default law of habitual residence) and Article 22 (choice of law / professio juris); Spanish Civil Code provisions on the legítima and testamento abierto; and Spanish notarial guidance on wills for foreign nationals and the Registro General de Actos de Última Voluntad. General information only, not legal, tax or estate-planning advice. Choice of law, forced heirship and Spanish inheritance tax should be confirmed with qualified US and Spanish advisers before acting.