Spanish and Dutch Inheritance Law: Key Differences and Why They Matter to You

Inheritance law, which determines how a person’s assets are distributed after their death, becomes significantly more complex when more than one legal system is involved. As the number of individuals with assets or family connections in multiple countries continues to grow, so does the need to navigate different inheritance regimes. Spain and the Netherlands are both popular destinations for expatriates and international families, but the differences between their legal systems can lead to unexpected consequences. Whether you’re a Dutch national who owns property in Spain or a Spanish citizen living in the Netherlands, understanding these differences is crucial for an effective planning of (future) inheritances and avoiding possible disputes.

Forced Heirship or Freedom of Disposition?

One of the most striking differences between Spanish and Dutch inheritance law lies in the concept of forced heirship. The general Spanish national law, the Spanish Civil Code (Código Civil) grants children a significant legal right to inherit from their deceased parents, regardless of the contents of a will. This is known as the legítima. Specifically, two-thirds of the estate must go to the children—regardless of the testator’s wishes. This reflects Spain’s national civil law tradition, which prioritizes the preservation of family wealth across generations. But Spanish law has another unique particularity, the regional laws (derechos forales) that are in force in some Spanish autonomous communities (Comunidades Autónomas), namely in Aragón, Cataluña, Illes Baleares, Galicia, Navarra and País Vasco. Some of these autonomous communities even have their own civil code, e.g. in Catalunya the Codi civil de Catalunya which contains its own inheritance law, that differs from the Spanish national law.

By contrast, Dutch inheritance law offers greater testamentary freedom. While children may have a right to a minimum share (legitieme portie), this is much more limited in scope, and testators in the Netherlands are generally free to distribute their estate as they see fit. In practical terms, under Dutch law there is more flexibility in how to allocate the estate.

Applicable Law and the EU Succession Regulation

For individuals with ties to more than one country, the question of which law applies to their succession, is crucial. In general, the applicable law depends on the last habitual residence of the deceased. For example, if a Dutch citizen dies in Spain without leaving a last will, Spanish law will apply directly.

On the other hand, the EU Succession Regulation (Regulation 650/2012), applicable in both Spain and the Netherlands, allows individuals to choose the law of their nationality to govern their entire estate, even if they have their actual last habitual residence in the other member state.

Therefore, a Dutch citizen residing in Spain can elect for Dutch law to apply to their succession. This can be especially important if the individual wishes to avoid Spain’s forced heirship rules. However, this legal choice must be made expressly in a valid last will.

Failing to make a choice of law can lead to unintended consequences. We often recommend reviewing your estate planning if you have recently moved or acquired property in Spain, to make sure your intentions are properly reflected. In some cases, drafting a Spanish will that applies only to your assets in Spain can help avoid administrative delays and reduce notarial costs. However, this must be assessed on a case-by-case basis, because these wills generally are bequests and not appointments of heirs. In that context, it is important to bear in mind, that there is, as a general principle, just one law governing the (worldwide) inheritance according to EU Succession Regulation, in this case either Dutch or Spanish law.

Inheritance Tax: A Matter of Jurisdiction

Another key difference between the two countries lies in their inheritance tax regimes. In Spain, inheritance tax, although it is a national state tax, is shaped by a lot of regional exemptions depending on the autonomous communities (Comunidades Autónomas), and tax rates vary widely depending on the heir’s relationship to the deceased and the value of the inheritance, and sometimes even where the deceased lived in Spain. Non-residents may face higher tax rates and benefit from fewer exemptions. Important to know that heirs typically have six months from the date of death to file and pay taxes in Spain. This deadline can be extended, but only if requested within the first five months. Missing this window may result in surcharges or interest, so proper timing is essential. It is also important to be aware of the Spanish municipal ‘plusvalía’ tax, which is levied on the increase in the value of the property and often takes foreign heirs by surprise as it is imposed on top of the state inheritance tax.The Netherlands, on the other hand, applies the same national system of inheritance tax. Tax liability is determined by the deceased’s place of residence and the heir’s relationship with them. Spouses and children generally benefit from higher exemptions and lower rates, while distant relatives and unrelated heirs may be subject to higher taxation.

What Should You Consider in Practice?

If you own or your family owns assets or reside in more than one country, international estate planning is essential. A clearly drafted will that specifies which country’s law should apply can prevent legal uncertainty and ensure your wishes are followed. It is equally important to regularly review your estate plan — especially after moving countries or acquiring property abroad.

If you own property, bank accounts, or other assets in Spain, you will usually need to go through a formal notarial acceptance of inheritance before the assets can be transferred. A Spanish tax number (N.I.E.) is required for heirs, and if you are not able to attend in person, a notarised power of attorney with Apostille is commonly used. In cooperation with the Spanish law firm DAUSS Abogados, S.L.P. we can help our clients handle all these formalities, so they don’t have to travel to Spain or deal with the paperwork on their own.

Notarial and registry fees, as well as valuation reports or sworn translations, are typically charged as disbursements and should be factored into your planning. We work with trusted professionals to obtain necessary certificates, coordinate filings, and ensure every step is managed efficiently.

At TLC Law Firm, we maintain close working relationships with legal professionals in Spain, like DAUSS Abogados, S.L.P., who specialize in cross-border inheritance and property matters. If you’re unsure how to proceed with cross-border inheritance planning, or if you have specific questions about Spanish or Dutch inheritance law, we are here to help. Our goal is to make the process as smooth, transparent, and stress-free as possible, so you can plan with confidence and peace of mind.

Questions?

Do you have questions about this blog or other succession law issues? Please feel free to approach one of our specialists at Ms. Willeke Krieger at krieger@tlcadvocaten.nl. You can also reach our offices at +31 53 3033000 (Enschede) or +31 523 745640 (Hardenberg) or send us an email at info@tlcadvocaten.nl.

Leest u deze blog liever in het Nederlands? Klik dan hier.