Brussels IV — EU Regulation 650/2012 on succession — is the single most powerful estate-planning tool available to foreign nationals in Spain. A properly drafted professio iuris can displace Spanish legítima, preserve your national forced heirship system, and give you testamentary freedom you would otherwise lose by becoming Spanish habitually resident. But the drafting must be explicit, precise, and documented.
Before Brussels IV, foreign nationals habitually resident in Spain were caught by a complex conflict-of-laws analysis under the old Article 9.8 of the Spanish Código Civil. National law typically governed succession, but Spanish property could be dragged into Spanish legítima through various routes. UK, Irish, and other common-law nationals faced the worst outcome: Spanish notaries often defaulted to Spanish legítima because the English concept of testamentary freedom sat uncomfortably with Spanish public order.
EU Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession — known as Brussels IV or the Succession Regulation — entered into force on 17 August 2015. It applies to deaths occurring on or after that date in all EU member states except Ireland and Denmark. The UK opted out but continues to be relevant as a source of nationals exercising the regulation's rights.
Article 21 sets the default rule: the law of the deceased's habitual residence at the time of death governs the succession as a whole. Article 22 provides the critical exception: any person may choose the law of a state whose nationality they possess at the time of making the choice or at the time of death to govern their succession. This choice — professio iuris — is the engine of Brussels IV estate planning for foreign nationals in Spain.
This page explains how Brussels IV works in practice, who qualifies for a professio iuris, what the drafting must contain to be effective, the public policy limits, how Spanish notaries and registries handle the regulation in daily practice, and the step-by-step process Platinum Legal Spain uses to embed a valid election into every cross-border will. It covers the practical interaction with Spanish legítima, the treatment of dual nationals, the question of habitual residence, and the situations where electing foreign law is the wrong answer.
Brussels IV gives foreign nationals in Spain one powerful lever: elect your national law in a Spanish will. Four rules govern whether the election works.
Article 22 of EU Regulation 650/2012 allows any person to choose the law of a state whose nationality they hold at the time of making the choice or at the time of death. The election must be made in a will or other disposition on death.
How the election worksArticle 21 provides that without a professio iuris, succession is governed by the law of the deceased's habitual residence at death. For Spanish-resident foreign nationals this means Spanish law — including Spanish legítima.
Residence vs nationalityArticle 22(1) lets a dual national elect the law of either (or any) of their nationalities. A British-Spanish dual national can elect English law; an Italian-Argentine dual national (with two nationalities) can elect either Italian or Argentine law.
Dual nationality planningArticle 22(2) requires the election to be made expressly in the disposition on death, or demonstrated by its terms. Explicit language is always preferred. Implicit election through will terms works but is litigation-prone.
Drafting standardsArticle 35 allows a Spanish court to refuse to apply a provision of the elected law that is manifestly incompatible with Spanish public policy. In practice this is narrow — rarely triggered except in extreme disinheritance or discrimination cases.
Public policy boundariesBrussels IV governs which succession law applies. It does not change which country taxes the inheritance. Spanish IHT still applies to Spanish-situs assets and, where the heir is Spanish-resident, to worldwide assets — regardless of the professio iuris.
Tax vs law distinctionThe professio iuris is not a magic wand. It works only within Article 22's conditions, and its practical value depends on the deceased's family structure, asset locations, and nationality. For a British national resident in Spain with adult children, electing English law converts Spanish legítima (two-thirds mandatory to descendants) into English testamentary freedom — a massive planning win. For a French national resident in Spain with minor children, electing French law shifts from Spanish legítima (more flexible allocation within the two-thirds) to French réserve héréditaire (stricter mathematical allocation per child) — sometimes a loss, not a gain.
The habitual residence default under Article 21 is increasingly where Spanish notaries and courts place the analytical weight. Habitual residence is a factual concept — length of stay, family presence, economic centre, social integration. A British retiree who spends 10 months a year in Málaga is habitually resident in Spain under Article 21, regardless of what their UK will says. Without an express professio iuris of English law, the succession is governed by Spanish law, with legítima applying to worldwide assets if the heir is Spanish-resident.
For non-EU nationals, Brussels IV still works. Article 20 provides universal application — the regulation applies whether the elected law is an EU member state law or not. A US citizen resident in Spain can elect the law of their US state (California, Florida, Texas) in a Spanish will. An Australian can elect Australian state law. A Swiss can elect Swiss cantonal law. The regulation's reach is broad; its only exceptions are Ireland and Denmark (who opted out) and the United Kingdom (which opted out pre-Brexit and has not acceded).
We confirm the testator's current nationalities (at the time of drafting), projected nationality at death, and current and projected habitual residence. A professio iuris only works if nationality exists at drafting or death; habitual residence analysis determines the default rule that would otherwise apply.
We draft the election clause in the Spanish will in explicit terms: 'En cumplimiento del artículo 22 del Reglamento (UE) 650/2012, el testador designa la ley [de Inglaterra y Gales / alemana / francesa / etc.] como la ley aplicable al conjunto de su sucesión.' Identical wording in any parallel foreign will.
The substantive dispositions of the will must be consistent with the elected law. An election of English law combined with dispositions that assume Spanish legítima is internally contradictory and invites challenge. We draft the dispositions after the election is decided.
The Spanish will is registered at the Registro General de Actos de Última Voluntad. Foreign wills with parallel elections should also be registered in their home jurisdiction. We coordinate registration timelines and keep an explicit reference in the Spanish will to any foreign will.
EU Regulation 650/2012 replaced a patchwork of national conflict-of-laws rules across 25 member states. Its structure is elegantly simple in three key articles. Article 21 provides the default (habitual residence at death). Article 22 provides the election option (nationality, current or at death). Article 23 sets out what the applicable law governs (essentially everything — capacity, substantive rules, forced heirship, administration, testamentary dispositions, collation, distribution).
Article 22 drafting has specific requirements. The choice must be "expressly made in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition". Express declaration is the gold standard. An explicit clause saying "I elect English law under Article 22 of EU Regulation 650/2012" is enforceable across all participating member states. Demonstrated election — inferring the choice from will terms (e.g., using trust language only meaningful under English law) — is accepted but carries litigation risk and is rarely used in well-drafted Spanish wills.
The election must be made in a disposition upon death. This can be a Spanish testamento abierto (open will before a notary), testamento cerrado (sealed will), or hológrafo (handwritten will — valid in Spain under Article 688 CC but uncommon); a foreign equivalent (English will, German Testament, French testament olographe or testament authentique); or a pacto sucesorio where the regional law permits one (Catalonia, Aragon, Galicia, Basque Country, Balearics allow pactos; most other Spanish regions do not).
Habitual residence under Article 21 is a factual test with recitals offering guidance. Recital 23 mentions "a close and stable connection with the State concerned", taking into account the duration and regularity of the deceased's presence and the conditions and reasons for it. Recital 24 addresses complex cases where the deceased moved in advanced age or for medical reasons — the habitual residence may remain where they previously lived long-term. Spanish courts have applied this flexibly. A British deceased who moved to Spain three months before death for medical care has been held habitually resident in the UK for succession purposes.
The professio iuris can be revoked or modified only in the form required for the revocation or modification of a disposition on death. In practice this means a new will. The election survives changes of nationality (if the nationality was held at the time of election) and changes of habitual residence (the whole point of the election). It does not survive a revocation that does not replace the election — revoking the Spanish will without a new disposition puts you back in the Article 21 default.
Article 83 provides transitional rules for elections made before 17 August 2015. An election made before the regulation's entry into force is valid if it complied with the rules of the state whose law was chosen or of the state where it was made. This is rarely relevant in 2026 but can matter for very old wills rediscovered during probate.
The European Certificate of Succession (ECS) under Articles 62-73 is the parallel administrative tool. Issued by a notary or court in one member state, the ECS is recognised in all participating member states as evidence of succession rights. It has largely replaced the old practice of obtaining separate national inheritance certificates in each country. For Spanish property inherited by heirs in Germany, France, Italy, or the Netherlands, an ECS issued by the Spanish notary is now the standard document presented to the foreign registry.
Public policy (orden público) under Article 35 is the narrow safety valve. Spanish courts refuse to apply provisions of the elected foreign law only where the application would be "manifestly incompatible" with Spanish public policy. In practice this has been invoked rarely. The clearest triggers are: extreme disinheritance of minor children (even under English law where testamentary freedom is the norm, depriving a minor of all support is public-policy problematic); discrimination based on religion, gender, or birth status (Sharia-law application to Spanish succession has been rejected on public-policy grounds); and exclusion of a surviving spouse who has no economic means (occasional Italian or French case-law). Routine disinheritance of adult children under English law is accepted — the English testamentary freedom principle is not itself contrary to Spanish public policy.
Tax scope is critical and constantly misunderstood. Brussels IV governs which substantive succession law applies. It has no impact on which country taxes the inheritance or at what rate. A British national habitually resident in Spain who elects English law under Article 22 still pays Spanish IHT on worldwide assets at Spanish regional rates. The professio iuris does not reduce the Spanish IHT bill by a cent — it only changes how the estate is divided among heirs, not how much tax is due on the division.
Spanish notaries handle Brussels IV elections routinely now, eleven years after entry into force. The notarial colegios have issued guidance; software systems generate standard election clauses; most Spanish notaries drafting cross-border wills include a professio iuris clause unless actively excluded by the testator. The quality of drafting varies enormously — we have seen elections drafted as passing references to "my national law" (technically valid but legally weak), elections with the wrong Article number cited (invalidates nothing but looks sloppy), and elections that elect one nationality while naming another (ambiguous and litigation-prone).
Dual nationality elections deserve specific drafting care. Article 22(1) allows election of "the law of a State whose nationality he possesses". For a British-Irish dual national, either British law (for Spanish purposes — England and Wales, Scotland, or Northern Ireland) or Irish law can be elected. The election must identify the specific legal system, not just the nationality. "I elect the law of England and Wales" is valid. "I elect British law" is technically incomplete because "British law" is not a single legal system (the UK has three). Good drafting names the specific jurisdiction within the composite state.
Renvoi is excluded under Article 34(2) when the professio iuris elects the law of a member state. Election of English law means substantive English law; it does not drag in English conflict-of-laws rules that might point elsewhere. This is a major simplification compared to the pre-2015 regime.
The election does not affect Spanish pacto sucesorio availability. In Spanish foral law regions (Catalonia, Aragon, Galicia, Basque Country, Balearics), pactos sucesorios are valid under regional law. A foreign national habitually resident in Catalonia who has elected English law still cannot enter a pacto sucesorio under Catalan law because Catalan law is not their elected law. This can matter for Catalan family business successions where a pacto is commercially essential.
One clause. One sentence. Properly drafted, it preserves testamentary freedom for common-law nationals and national forced heirship for civil-law nationals across a Spanish estate.
Request a Brussels IV Estate ConsultationParents resident in Spain with children in EU; non-resident property owners leaving Spanish assets to heirs abroad; surviving spouses, siblings, aunts and uncles, grandparents — every cross-border configuration follows a different rulebook.
72-year-old British national, eight years habitually resident in Málaga, two adult children both UK-resident. Spanish will with explicit Article 22 election of English law. On death, English testamentary freedom applies — full estate to surviving spouse, legacy to grandchildren, no Spanish legítima constraint. Andalusia 99% bonificación on Spanish IHT regardless of succession law.
German couple resident in Valencia, two minor children. German will with Brussels IV election of German law and Ehegattentestament structure with Berliner Testament clauses. German Pflichtteil preserved; Spanish legítima displaced; Valencia 99% Group I/II bonificación on Spanish IHT.
French wife, Spanish husband, both resident in Barcelona. Wife elects French law in her Spanish will preserving French réserve héréditaire; husband's will follows Spanish (Catalan) law. Coordinated drafting prevents contradiction on joint Spanish property.
Dual national resident in Sevilla, three children. Elects Italian law under Brussels IV — Italian legittima more protective of surviving spouse than English freedom, fits family structure better. Andalusia bonificación applies regardless.
American tech executive resident in Madrid under Beckham regime, California domicile of origin. Spanish will with Article 22 election of California law. California testamentary freedom preserved; Spanish legítima displaced; Madrid 99% Group I/II bonificación on Spanish IHT.
Dutch deceased with 2010 Spanish will containing explicit election of Dutch law. Article 83 transitional rules preserve the election. No new will needed; Dutch law governs. Heirs apply for European Certificate of Succession issued by the Spanish notary.
Before Brussels IV, foreign national law often governed by default under old Article 9.8 CC. Post-2015, the default is habitual residence — meaning Spanish law for Spanish-resident foreigners. Without an express professio iuris, Spanish legítima applies.
Article 22(2) allows demonstrated election through will terms, but this is litigation-bait. Always use explicit drafting: 'I elect the law of [jurisdiction] under Article 22 of EU Regulation 650/2012 to govern my succession.'
'I elect British law' is ambiguous (England and Wales, Scotland, Northern Ireland). 'I elect the law of England and Wales' is precise. Same for Spanish regional laws (Catalan, Aragonese, Galician), US state laws, Canadian provincial laws, Australian state laws.
Electing foreign law does not reduce Spanish IHT. Spanish IHT follows asset situs and heir residence, not succession law. Heirs frequently expect the election to cut the tax bill; it does not.
A new Spanish will with Brussels IV election must explicitly revoke prior Spanish wills. An old will silently left in place competes with the new one; both get registered at the Registro General de Actos de Última Voluntad. Probate chaos results.
If you will never become habitually resident in Spain, the professio iuris is belt-and-braces protection. If you will become habitually resident, the election is essential. Projecting habitual residence matters to the advice.
Pre- and post-Brexit. Brexit did not affect Brussels IV rights for British nationals — Article 20's universal application means any non-EU national can elect their national law. Every British client's Spanish will includes an explicit English (or Scots, or Northern Irish) law election.
German, French, Italian, Dutch, Belgian, Swedish, Danish, Polish, Portuguese, Irish (despite Ireland's opt-out), and all other EU nationals. Election of national law preserves the familiar framework and national forced heirship.
Common-law nationals with strong testamentary freedom traditions. Election of national (state/province) law converts Spanish legítima into free disposition — huge planning gain.
Non-EU EEA or associated states. Brussels IV applies with universal scope — their national law can be elected in a Spanish will. Same practical benefit as EU nationals.
British-Irish, German-Italian, French-Canadian, US-Israeli, Australian-British. Election of any nationality held at drafting or death. Drafting decision driven by family structure, assets, and forced heirship fit.
UK solicitors, French notaires, German Notare, Dutch notarissen, Italian notai coordinating cross-border estates. We integrate the Spanish Brussels IV position with their national drafting and probate procedures.
Brussels IV applied, wills drafted, EU and Spanish tax positions coordinated, deadlines tracked.