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British expats in Spain often believe their will decides who inherits, only to find that Spanish law can override it. Brussels IV is the reason, and Article 22 is the answer. This article explains what the Regulation does, how electing the law of your nationality restores testamentary freedom, why the election works even though the UK opted out, and the crucial point that choosing UK law changes who inherits but not what your heirs pay in tax.
Most British expats in Spain assume their will has the final word on who inherits, because they are:
In practice, that feels reasonable. It is also where the gap starts.
Across most of the European Union, the question of which country's law governs your estate is decided by a single Regulation, known informally as Brussels IV. For a British expat who has made Spain their home, its default answer is Spanish law, and Spanish law does not give you a free hand. It reserves a large share of your estate for your children, whatever your will says.
This article exists to explain what Brussels IV does, why it governs succession law but not succession tax, and how the Article 22 election lets you choose the law of your nationality so your will can once again mean what it says.
Brussels IV is the everyday name for the EU Succession Regulation, formally Regulation 650/2012, which has applied since 17 August 2015. Its purpose is to bring order to cross-border estates by fixing, in one place, which country's succession law governs when someone dies owning assets in more than one country.
Before it existed, an estate that straddled two countries could face conflicting rules, with each country claiming its own law applied. The Regulation replaced that confusion with a single connecting factor, so that one country's succession law governs the whole estate rather than a patchwork of national rules fighting over the pieces.
The key word is succession, meaning who inherits and in what shares. Brussels IV is about the rules of inheritance, the legal framework that decides how an estate is divided. It is not a tax measure, and keeping that distinction clear is the single most important thing to understand about it.
The most common and most costly misunderstanding is to treat Brussels IV as if it affects tax. It does not. The Regulation decides which succession law applies, meaning who is entitled to inherit and in what proportions. It says nothing about which country charges tax on the inheritance or how much.
Those are two entirely separate systems. Succession law answers the question, who gets what. Succession tax answers the question, what does the person who inherits have to pay. Brussels IV works on the first question only, and no election under it touches the second.
This matters enormously in practice, because a British expat who elects English law under Brussels IV can wrongly believe they have also escaped Spanish inheritance tax. They have not. The Spanish succession tax your heirs still face is decided by a different set of rules entirely, and it remains fully in play whatever law governs the distribution.
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If you do nothing, Brussels IV applies a default rule: the succession law of the country where you were habitually resident at the time of your death governs your whole estate. It is an automatic connecting factor, and it applies unless you actively choose otherwise.
For a British expat who has genuinely settled in Spain, made it their home, and lives there year-round, the country of habitual residence is Spain. So the default law governing their estate is Spanish succession law, and that is where the difficulty begins for anyone expecting English-style freedom.
The default is not something you opt into. It is what happens by silence. A British expat who never makes an election, and who is habitually resident in Spain, has effectively chosen Spanish succession law without ever deciding to, simply by not deciding at all.
Spanish succession law includes forced heirship, the legitima, and this is what makes the default so significant. Under the Civil Code, a large share of the estate, broadly two-thirds, is reserved for your children, and you cannot freely leave it elsewhere. Some regions apply their own foral variations, but the principle holds.
For an English person, this is a genuinely foreign concept. In England there is no forced heirship, and you can in principle leave your estate to a spouse, a charity or anyone you choose. Spanish law starts from the opposite assumption, that the family, and children in particular, have a protected claim on the estate.
The practical consequence is stark. A British expat who intended to leave everything to a spouse can find that, under the default Spanish rules, most of the estate is reserved for the children instead. That is not a drafting error in the will. It is the law that sits above the will, and only a positive election can change which law that is.
Brussels IV builds in the remedy. Article 22 allows you to elect the law of your nationality to govern your succession, in place of the default law of your residence. It is a positive choice you record in your will, and it is the mechanism that gives cross-border testators control.
For a British national, electing the law of your nationality means choosing a UK law of succession that has no forced heirship. English law, in particular, allows broad testamentary freedom, so the election restores your ability to leave your estate as you wish, free of the legitima.
This is why the election is so valuable to British expats, and why it should never be left to chance. The difference between silence and a clear Article 22 election can be the difference between your estate passing as you intended and most of it being reserved for heirs you did not choose. A Spanish will as the natural home for the election is the usual and clearest way to record it.
A point that surprises people is that there is no single United Kingdom law of succession. The UK is made up of separate legal jurisdictions, and Article 22 requires you to elect the law of the relevant one, not simply British law in the abstract.
A British national can elect the law of England and Wales, of Scotland, or of Northern Ireland, according to the connection they have. The choice matters, because these systems are not identical. English law offers broad testamentary freedom, whereas Scots law retains its own concept of legal rights for a spouse and children over part of the estate.
For a British expat seeking to avoid forced heirship entirely, this distinction is not academic. Electing the wrong internal law, or being vague about which UK law is chosen, can undermine the very freedom the election was meant to secure. The choice should be deliberate and precisely worded, naming the jurisdiction, not left as a general reference to British law.
There is an apparent puzzle that worries many British expats. The UK never signed up to Brussels IV. It opted out of the Regulation, so how can a British national elect UK law under a Regulation the UK is not part of?
The answer lies in how the Regulation operates. Brussels IV binds the member states that adopted it, Spain among them, and it directs those states to apply a valid election of a testator's national law, whether or not that national state is itself a party. So Spain, as a participating state, honours the election of English or Scots law even though the UK is outside the Regulation.
In everyday terms, the election is made to satisfy Spanish authorities applying the Regulation, and they will give effect to it. This is well established in practice, but it is precisely the sort of point where an unclear or informally drafted election can create doubt, which is why the wording and its placement deserve professional care rather than a do-it-yourself clause.
An election only helps if it is made properly, and the failures tend to follow a pattern. Two short illustrations make the point.
In the first, a British couple made Spanish wills but said nothing about choice of law, assuming their English intentions would simply be respected. When one died, the default applied, Spanish forced heirship governed the estate, and a share the survivor expected to receive was reserved for the children. Nothing was wrong with the will except the one thing it did not say.
In the second, a testator did mention English law, but did so loosely in an old UK will while a later Spanish will, silent on the point, dealt with the Spanish flat. The documents pointed in different directions, and the family faced argument over which prevailed. The election existed, but not clearly and not in the document that mattered.
The lesson from both is the same. An election is a precise legal act, not a general wish, and it needs to be stated clearly, in the right document, and kept consistent across your wills. That is the difference between a protection that holds and one that unravels when it is tested.
It is worth stating plainly, because the hope is so common: electing UK law does not reduce or remove Spanish succession tax. The election changes the law of inheritance, not the tax. Your heirs still face Spanish tax on Spanish assets exactly as before.
Spanish succession tax, the ISD, is charged on Spanish assets and on inheritances received by residents of Spain, it is paid by the heir, and it must generally be settled within six months of death. None of that is altered by choosing English law to govern the distribution.
So the election and the tax have to be planned together but understood separately. Deciding who inherits under English law is one exercise; working out what those heirs will pay, and how, is another. Both belong in the plan, and confusing them is how people end up disappointed by an election that did exactly what it was meant to do and nothing more.
Because the default turns on habitual residence, it is worth understanding that this is a factual question, not a box you tick. It looks at where your life is genuinely centred, your home, your family, your day-to-day existence, rather than simply where you are registered or where you say you live.
For someone who splits time between Spain and the UK, habitual residence can be genuinely uncertain, and that uncertainty flows straight into which law would govern their estate by default. It is one more reason to make a positive election rather than rely on the default, because the default itself may be arguable.
The practical takeaway is that the more mobile your life, the more valuable a clear election becomes. If reasonable people could disagree about where you were habitually resident, you do not want your family arguing the point after your death. Choosing your national law expressly removes that argument, and it does so in the one document that will actually be read when it matters.
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An election can only be made by the person whose estate it governs, and only while they have the capacity to make a valid will. That sounds obvious, but it carries a practical warning: the window to act closes quietly, and it cannot be reopened by the family afterwards.
Once someone has lost capacity or died, no relative can go back and add the choice of law that would have protected the estate. The default simply applies. So the value of the election lies entirely in making it in good time, as part of putting your wills in order, rather than leaving it as a task for later that later never comes.
For couples this is worth doing together, so that each estate is protected and neither is left exposed by an election that only one of them made. It sits naturally alongside deciding what actually happens to your Spanish property on death, since the choice of law and the practical mechanics of passing on a Spanish home are two halves of the same conversation.
Brussels IV is a short idea with long consequences, and the value of advice is in getting the details exactly right. It earns its place in a few specific ways.
The goal is an estate where the law that governs it is the law you chose, recorded so clearly that no one has to argue about it, and where the tax that follows has been planned for rather than assumed away.
If you are reading this and thinking:
then the useful next step is a short check of what your wills actually say about choice of law. Most of the time the election is either missing or unclear, and both are quick to put right while you can still sign the documents.
It is one clause to get right, and it decides who inherits everything else.
The Article 22 election is not about:
It is about:
Brussels IV decides whose rules divide your estate, and by default that is Spain's. A clear Article 22 election puts that decision back in your hands, provided you remember that it settles the law of inheritance and not the tax that comes with it. Get both right, and your estate passes as you intended, to the people you chose.
As a Private Wealth Partner at Skybound Wealth, Kevin works with expatriate and internationally mobile clients who want long-term, relationship-led financial planning from someone who understands how decisions play out across countries, market cycles, and life stages.
This article is for information purposes only and does not constitute financial advice. Financial planning outcomes depend on individual circumstances, residency, tax status, and objectives. Professional advice should always be sought before making financial decisions.
A short review can establish whether a choice-of-law election is appropriate and whether your existing wills clearly reflect it.
Kevin Birtles helps British expats understand the Article 22 election, record the choice clearly, and separate succession planning from the Spanish tax consequences that follow.
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We can review your current position and explain whether an Article 22 election could protect your wishes.
