If you are an American heir of a Spanish estate, or a US citizen owning property in Spain and planning your succession, the differences between the two systems are profound — and the rules that apply depend on more than just nationality. This guide compares Spain and the United States across the seven points that matter most for cross-border heirs, executors and US property owners on the Costa Blanca and in Valencia.
1. Forced Heirship — Spanish legítima vs US Freedom of Testation
USA: the dominant rule is freedom of testation. A testator can leave their estate to whomever they wish, with three significant exceptions that vary by state: surviving-spouse “elective share” rights in most states, community-property rules in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, and Louisiana’s distinctive forced heirship rules for descendants under certain ages or with disabilities.
Spain: the Civil Code mandates that two-thirds of the estate must be reserved for protected heirs (descendants first, ascendants next, surviving spouse in part) — the so-called legítima. US owners of Spanish property who wish their home-state freedom of testation to govern their Spanish succession can do so by making an express choice of law in their Spanish will. The mechanism is explained in Section 2 below.
2. EU Succession Regulation 650/2012 (Brussels IV) — does it apply to Americans?
EU Regulation 650/2012, known as Brussels IV, governs cross-border succession within the participating EU Member States and lets a testator choose the law of their nationality to govern the entire succession of their estate. The United States is not a party to the Regulation.
However, Spanish private international law (Article 9.8 of the Spanish Civil Code) still allows the law of the deceased’s last nationality to govern their succession in Spain. In practical terms this means a US citizen can validly elect, in their Spanish will, that their succession be governed by the law of their US state of domicile — for example California, New York, Florida or Texas. We draft Spanish wills for American clients with a properly worded professio iuris clause to ensure this election is recognised by Spanish notaries and the Spanish Land Registry.
3. Recognition of US Wills in Spain
US wills — whether drafted in California, Florida, New York, Texas or any other state — are valid in Spain after the document is legalised with the Hague Apostille and translated into Spanish by a sworn translator. The United States is a party to the Hague Apostille Convention of 1961, so the apostille is issued by the Secretary of State of the relevant US state (or by the US Department of State for federal documents).
While a US will is legally usable in Spain, relying on it alone adds cost, time and apostille / translation burden for the heirs. We strongly recommend drafting a separate Spanish will limited to Spanish assets, drafted before a Spanish notary, with an express professio iuris in favour of the law of the testator’s US state. This makes the Spanish-side inheritance procedure faster and far less expensive for the heirs.
4. Inheritance Tax — US Federal Estate Tax vs Modelo 650
USA: federal Estate Tax at the national level, plus separate state-level estate or inheritance taxes in some US states. Spain: Impuesto sobre Sucesiones y Donaciones (Modelo 650), with regional variation; the Comunidad Valenciana applies reductions for direct heirs. Cross-border heirs may face overlapping US and Spanish liability — we manage the inheritance process and coordinate with any US-side advisors involved to ensure the dual system is handled efficiently.
5. Probate vs Aceptación de Herencia
USA: probate is a court-supervised process opened in the state probate court of the decedent’s domicile. The court appoints an executor or personal representative, oversees the inventory and the distribution of assets, and grants a Letters Testamentary (with a will) or Letters of Administration (without). Probate timelines and procedures vary widely by state. Many states have simplified procedures for “small estates” and several offer non-judicial settlement when there are no disputes.
Spain: there is no probate court process equivalent. The heirs (or their attorney acting under power of attorney) sign the Escritura de Aceptación y Adjudicación de Herencia before a Spanish notary, file the Modelo 650 inheritance-tax return, and register the inherited assets in their names at the Spanish Land Registry. Where the deceased had a US will, the firm coordinates the apostille and sworn translation, obtains a certificate of foreign-will validity where required, and reconciles the US will with the Spanish notary’s requirements.
6. Modelo 211 — 3% Retention When American Heirs Sell Spanish Property
When non-resident American heirs sell the Spanish property they have inherited, Spanish tax law requires the buyer to withhold 3% of the sale price and pay it directly to the Spanish tax authority via Modelo 211, on account of the seller’s capital gains tax. This is a statutory obligation under Spanish tax law that applies regardless of nationality, but it surprises many US heirs who are not used to a withholding mechanism of this kind. Our office handles the Modelo 211 filing and the subsequent refund claim where the seller’s actual capital gains tax liability is lower than the 3% retained.
7. Power of Attorney — Handling Spanish Inheritance from the United States
Most American heirs we represent complete the entire Spanish inheritance remotely. The mechanism is a Power of Attorney signed before a US notary public and legalised with the Hague Apostille issued by the Secretary of State of the signing state. Once apostilled and translated, the document gives our office full authority to act on the heir’s behalf in Spain.
What we handle under power of attorney: search of the Spanish Last Will Registry (Registro General de Actos de Última Voluntad), application for the heirs’ NIE (Spanish Foreign Identification Number), signing of the Acceptance of Inheritance before a Spanish notary, filing of Modelo 650, payment of inheritance tax, and registration of the inherited property in the heirs’ names at the Spanish Land Registry. We also coordinate with US executors, US estate-tax advisors and US state probate courts where required.
See our full Spanish inheritance and wills service for American and other international heirs.
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