Professio iuris: choosing your national law in your will (and why it does NOT lower the tax)

Many foreign clients who own a home on the Costa Blanca arrive with the same worry: 'When I die, will my estate be divided according to Spanish rules, even though I am British, German or Dutch?'. It is an excellent question, because the answer has very real consequences: Spain has the legítimas (forced heirship), a portion of the estate that the law compulsorily reserves for certain relatives and that you cannot dispose of freely.

The good news is that you have a tool to decide this yourself: the professio iuris, that is, the option of choosing in your will for your entire estate to be governed by the law of your nationality. I will explain what it is, how to do it properly and, above all, an essential point that almost no one clarifies and that is the heart of this article.

What professio iuris is and where it comes from

By default, within the European Union your estate is governed by the law of the country where you have your habitual residence at the time of death (art. 21 of Regulation EU 650/2012). In other words, if you live in Spain, in principle Spanish law would apply to your entire estate, including the Costa Blanca property and any assets you hold in your home country.

But that same European Succession Regulation lets you change the rule: you may designate the law of the State whose nationality you hold to govern your estate as a whole (art. 22.1 of Regulation EU 650/2012). You can choose the nationality you hold at the time of making the will or the one you hold at death. That choice is what is called professio iuris.

How you choose the law: it has to be in the will

Here is the point that causes the most mistakes: the choice is not presumed. It must be made expressly in a disposition of property upon death — your will — or appear clearly from its terms (art. 22.2 of Regulation EU 650/2012). Being a foreigner is not enough; simply 'assuming' that your national law will apply is not enough. If you do not put it in writing, the law of your habitual residence applies by default.

That is why a will executed before a notary in Spain, with a clear clause choosing your national law, is the safest way to protect your wishes. The validity of that choice is governed by the chosen law itself, and to revoke or amend it you must meet the same formal requirements as any will (arts. 22.3 and 22.4 of Regulation EU 650/2012).

What it really achieves: avoiding forced heirship

This is the most common use. Picture a British national with a home in Calpe. Spanish law reserves a significant share of the estate for the children — the legítima (forced share) — and limits what the deceased can leave freely (arts. 806 et seq. of the Código Civil). English law, by contrast, is built on freedom of testation: it does not recognise those broad forced shares. One honest caveat is in order, though: that freedom is not absolute. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain family members and dependants to apply to the court for reasonable financial provision out of the estate, even if the will says otherwise. The underlying difference from Spain is clear: English law does not set a fixed statutory share, but instead opens the door to asking the court for provision based on the circumstances of the case.

If that British national chooses in their will for the estate to be governed by English law, the succession will be governed by that law and NOT by the forced heirship of the Spanish Código Civil. They may, for example, leave their Costa Blanca home to whomever they decide, with the freedom their national law allows. There is a theoretical public-policy limit (art. 35 of Regulation EU 650/2012), but it is worth knowing that Spanish practice has been routinely accepting the application of the chosen foreign law; in your particular case this should be confirmed.

The essential point: the chosen law does NOT lower the tax

And here comes what almost no one explains, and it is the most important thing of all. Professio iuris changes ONLY the civil law of the succession: who inherits, in what shares, with what forced heirship, how it is divided. But it does NOT touch taxation. The European Succession Regulation itself expressly excludes tax matters from its scope (art. 1.1 of Regulation EU 650/2012): it does not regulate taxes.

What does this mean in practice? That Spanish Inheritance Tax is still payable just the same. On a property located in Spain, the heir — even a non-resident foreigner — is taxed by 'obligación real' (real obligation, art. 7 of Ley 29/1987), with the tax accruing on the day of death (art. 24 of the same law). Choosing English, German or Dutch law for your estate does NOT reduce or eliminate that Spanish tax. They are two separate levels: one thing is who inherits and how much (civil law) and quite another is how much is paid to the tax office for the property (tax law).

Put another way: professio iuris is a tool for civil planning, not for tax saving. For the tax, what matters are the rules of Inheritance Tax and the regional reliefs — in the Comunitat Valenciana, very significant for spouse, children and ascendants — which depend on the family relationship and on where the asset is located, not on nationality or on the law you chose in the will.

How the European Certificate of Succession fits in

Once the deceased has passed away, the heirs need to prove their status as heir in several countries at the same time. That is what the European Certificate of Succession is for (arts. 62 to 73 of Regulation EU 650/2012): a single document that proves who is heir, legatee, executor or administrator, and that takes effect in the other Member States without having to repeat formalities in each one. Its official forms are set out in Implementing Regulation (EU) 1329/2014.

Professio iuris and the European Certificate of Succession work together: in the will you decide which law governs your estate, and after death the certificate is used to enforce it smoothly in Spain and in your home country. That is why it is worth planning both at the same time, and not only once the problem has already arisen.

If you own a property on the Costa Blanca and you are a foreigner, let me review your will or draft it with you. We choose the right law to govern your estate so as to protect your wishes, and at the same time I explain with real figures what tax will be payable in Spain, with no surprises. One thing is who you leave your house to; quite another is what it will cost to receive it. It is worth having both clear before you sign.