Many Germans spend their retirement on the Costa Blanca or in Mallorca, and others keep a holiday apartment there. On a death, the question then arises: in an inheritance case with a connection to Spain, does German law or Spanish law apply? The answer does not depend on nationality but primarily on the deceased’s last habitual residence (gewöhnlicher Aufenthalt) and on whether he or she made a choice of law in a will. This article explains, from a German perspective, the applicable succession law, jurisdiction, proof of succession, the compulsory share and German inheritance tax (legal position as of October 2026). Questions of Spanish law itself belong in the hands of an adviser on the spot.
Three Typical Constellations
To classify a case, it helps first to determine the starting position:
← Tabelle nach links wischen, um weitere Spalten zu sehen
| Constellation | Succession law without choice of law | Succession law with choice of German law | Most important German tax question |
|---|---|---|---|
| German lives permanently in Spain | in principle Spanish law (Art. 21 EU Succession Regulation, EuErbVO) | German law (Art. 22 EuErbVO) | Are the deceased or the heirs still residents within the meaning of the Inheritance and Gift Tax Act (ErbStG)? |
| German lives in Germany, owns a holiday property in Spain | German law for the entire estate | German law | Credit of Spanish tax on the property under Section 21 ErbStG |
| Deceased lives in Germany, heirs live in Spain | German law | German law | German tax on the entire acquisition, since the deceased is a resident |
Anyone who lives in Spain and makes no choice of law therefore as a rule leaves German inheritance law. The general mechanics of the EU Succession Regulation are explained in the article on international inheritance law on emigration.
Which Succession Law Applies: Habitual Residence Decides
Since 17 August 2015, the European Succession Regulation (Regulation (EU) No 650/2012, EuErbVO) has applied in Germany and Spain. Under Art. 21 (1) EuErbVO, the succession to the estate as a whole is governed by the law of the state in which the deceased had his or her habitual residence at the time of death. The former connection to nationality no longer applies to deaths from that date. Under the principle of unity of the estate (Nachlasseinheit), one law governs the house in Alicante just as it does the securities account in Frankfurt.
Habitual Residence for Winter Residents and Commuters
Habitual residence is not determined by rigid periods but from an overall assessment of the circumstances of life before death: duration and regularity of the stay, family and social ties, location of the assets. Especially for retirees who spend the winter in Spain and the summer in Germany, the result is often open. A Spanish registered address is an indication but not decisive on its own. The tax test of 183 days or the six-month period of Section 9 of the Fiscal Code (AO) cannot be transferred without further thought, because the concept in succession law is to be interpreted independently under the Regulation.
Art. 21 (2) EuErbVO additionally contains an escape clause: if the deceased was manifestly more closely connected with another state, the law of that state may exceptionally apply. This clause is to be interpreted narrowly and is not a planning tool.
Spain Has Several Succession Law Systems
If the connecting factor leads to Spanish law, in addition to the common Spanish civil law there are regional civil laws of their own (Foralrechte) in several regions, for example in Catalonia, the Balearic Islands, Aragon, Navarre, Galicia and the Basque Country. Which sub-system applies is determined under Art. 36 (1) EuErbVO by Spain’s internal conflict rules. What the respective regional law provides, for example, on the spouse’s succession rights, the forced heirship of children (Noterbrecht) or joint wills should be examined by an adviser on the spot.
The Choice of German Law under Art. 22 EuErbVO
A German national can, under Art. 22 (1) EuErbVO, choose the law of the state of which he or she is a national at the time of making the choice or at the time of death. A German can choose Spanish law only if he or she is also a Spanish national; without a choice of law, however, it applies anyway with habitual residence in Spain.
Form and Content
Under Art. 22 (2) EuErbVO, the choice of law must be made expressly in a disposition of property upon death or be demonstrated by the terms of such a disposition. A merely inferred choice of law easily leads to dispute; an express clause is recommended, for example: “For the succession to my estate I choose German law.” Amendment and revocation of the choice of law must, under Art. 22 (4) EuErbVO, meet the formal requirements for dispositions upon death. Questions of formal validity are covered in the article on the will when living abroad.
Wills from Before 2015
Many Germans in Spain made their will before 17 August 2015 without a choice of law, because at that time the law of the home country applied anyway. Under Art. 83 (4) EuErbVO, the law under which a disposition upon death made before that date was made is deemed chosen if the deceased could have chosen that law under the Regulation. Such a will can therefore operate as a choice of German law; whether it was “made under German law” is, however, a question of interpretation. An express supplement creates clarity.
Berlin Will, Inheritance Contract and Matrimonial Property Regime
Married couples in Germany often arrange their succession with a joint will or an inheritance contract. Whether and to what extent Spanish law recognises such structures is doubtful according to common accounts and may have to be assessed differently depending on the regional sub-system. How Spanish bodies treat a German Berlin will (Berliner Testament) or inheritance contract in a specific case should therefore be clarified by an adviser on the spot. From a German perspective, content and binding effect are governed by German law if it has been validly chosen.
The matrimonial property regime is also relevant: the increase of the spouse’s share by one quarter under Section 1371 (1) of the German Civil Code (BGB) was classified by the CJEU in the Mahnkopf case (C-558/16) as a matter of succession law. With Spanish law governing succession, it is therefore unclear how German matrimonial property law and Spanish succession law interact; a choice of German succession law largely avoids this conflict. Married couples should therefore have their matrimonial property regime and will reviewed together.
What the Choice of Law Means for the Compulsory Share
With a choice of German law, German compulsory share law (Pflichtteilsrecht) also applies in principle. Children, spouses and, in certain circumstances, parents then have a monetary claim against the heirs amounting to half the statutory share of inheritance (Section 2303 BGB). A direct participation in the estate in rem, as Spanish forced heirship provides according to common accounts, does not arise.
For structuring, this means:
- The choice of law does not eliminate the compulsory share; it merely replaces forced heirship with the German monetary claim.
- Anyone who lets Spanish law apply in order to escape the German compulsory share may exchange it for forced heirship that can restrict testamentary freedom more strongly. This depends on the Spanish sub-system and belongs in advice on the spot.
- A notarial waiver of the compulsory share under Section 2346 (2) BGB is a possible structuring instrument under German succession law. Whether such a waiver is recognised in Spain must be clarified separately.
- Enforcement against Spanish assets involves practical hurdles; see the article on compulsory share law with assets abroad.
Which Court Has Jurisdiction
Under Art. 4 EuErbVO, the courts of the member state in which the deceased had his or her last habitual residence have jurisdiction. If a German last lived in Spain, the Spanish courts and authorities therefore have jurisdiction in principle, even if German law was chosen. Spanish bodies then apply German succession law.
In its judgment of 21 June 2018 (Oberle case, C-20/17), the CJEU decided that the jurisdiction rules of the EuErbVO also apply to national certificates of inheritance. A German probate court therefore cannot in principle issue a certificate of inheritance (Erbschein) where the last habitual residence was in Spain, even if there are accounts or real property in Germany.
If the deceased chose German law, the Regulation opens a way back to the German courts:
- Under Art. 5 EuErbVO, the parties concerned can agree in writing that the courts of the member state whose law was chosen are to have exclusive jurisdiction.
- Under Art. 7 EuErbVO, the German courts have jurisdiction if the Spanish court first seised has declined jurisdiction under Art. 6, if such a choice-of-court agreement exists, or if the parties to the proceedings have expressly accepted the jurisdiction of the court seised.
This requires the cooperation of the parties and can fail with a quarrelling community of heirs. Which German probate court has local jurisdiction when German courts have international jurisdiction is covered in the article on jurisdiction of the probate court when living abroad.
Disclaiming the Inheritance from the Heirs’ Place of Residence
Under Art. 13 EuErbVO, heirs in Germany can also declare the disclaimer before the courts of their state of residence, provided the applicable succession law provides for such a declaration. Under Section 31 of the International Succession Procedure Act (IntErbRVG), the probate court at the habitual residence of the declarant has jurisdiction, for recording or in publicly certified form. The period is governed by the law governing succession; if Spanish law applies, an adviser on the spot clarifies period and effect in Spain. More in the article on disclaiming an inheritance with a cross-border element.
Proof of Succession: Certificate of Inheritance, European Certificate of Succession and Spanish Formalities
← Tabelle nach links wischen, um weitere Spalten zu sehen
| Situation | Proof of succession from a German perspective | Note |
|---|---|---|
| Last habitual residence in Germany | German certificate of inheritance and/or European Certificate of Succession from the German probate court | For use in Spain, the Certificate of Succession is usually more practical |
| Last habitual residence in Spain | Proof of succession from the Spanish bodies, European Certificate of Succession from Spain | German certificate of inheritance in principle not obtainable (CJEU Oberle) |
| Residence in Spain, German law chosen, jurisdiction under Art. 5 or 7 EuErbVO | Certificate of inheritance and Certificate of Succession from the German probate court possible | Cooperation of all parties required |
Under Art. 64 EuErbVO, the European Certificate of Succession is issued in the member state whose courts have jurisdiction under Art. 4, 7, 10 or 11. It has effect in Germany as in Spain. Under Art. 70 (3) EuErbVO, certified copies are in principle valid for only six months.
The Certificate of Succession does not, however, replace the procedures of the state where the property is located. The entry of rights in a register is excluded from the scope of the Regulation by Art. 1 (2) letter l EuErbVO. For a property in Spain, further steps under Spanish law are therefore usually necessary, such as a notarial acceptance of the inheritance, a Spanish tax number (NIE) for the heirs and the transfer in the property register. Procedure, costs and deadlines are clarified by an adviser on the spot. A country overview is given in the article Inheriting property abroad.
German Inheritance Tax in a German-Spanish Inheritance Case
The law governing succession says nothing about which state levies inheritance tax. Spain levies its own inheritance tax, the design of which varies regionally; amount, allowances and filing periods should be clarified with a Spanish tax adviser. There is no double taxation treaty in the field of inheritance tax between Germany and Spain. The general basics are covered in the article on inheritance tax and double taxation treaties.
When Germany Taxes
Under Section 2 (1) no. 1 ErbStG, the entire acquisition, wherever the assets are located, is subject to German tax if the deceased at the time of death or the acquirer at the time the tax arises is a resident. Residents are persons with a residence or habitual abode in Germany; Germans also remain residents under Section 2 (1) no. 1 sentence 2 letter b ErbStG as long as they have not stayed abroad permanently for more than five years without having a residence in Germany.
← Tabelle nach links wischen, um weitere Spalten zu sehen
| Deceased | Heirs | German tax liability |
|---|---|---|
| Lives in Germany, holiday home in Spain | in Germany or Spain | unlimited, entire acquisition including the holiday home |
| German, in Spain for less than five years, no longer a home in Germany | any | unlimited, as the deceased is still a resident |
| In Spain for more than five years, no home in Germany | children in Germany | unlimited for the acquirers in Germany |
| In Spain for more than five years, no home in Germany | children also abroad without resident status | limited, only domestic assets under Section 121 of the Valuation Act (BewG), such as property in Germany |
Under limited tax liability, the personal allowance is reduced proportionately under Section 16 (2) ErbStG. Irrespective of this, the acquisition must be notified to the competent tax office within three months of knowledge under Section 30 ErbStG, unless one of the exceptions applies.
Credit of Spanish Tax under Section 21 ErbStG
Without a treaty, Section 21 ErbStG applies. Under it, on application, the foreign tax that has been assessed and paid, is no longer subject to a claim for reduction and corresponds to German inheritance tax is credited against the German tax, to the extent the foreign assets are also subject to German tax. Credit applies only under unlimited tax liability under Section 2 (1) no. 1 ErbStG. It is limited to the part of the German tax attributable to the foreign assets (Section 21 (1) sentence 2 ErbStG). In addition, the German tax must have arisen within five years of the arising of the Spanish tax (Section 21 (1) sentence 4 ErbStG). The amount of the foreign assets and the assessment and payment of the Spanish tax are to be proven by documents (Section 21 (3) ErbStG).
The Trap with Spanish Bank Balances
What counts as “foreign assets” is decisive. Here Section 21 (2) ErbStG distinguishes two cases:
- Deceased was a resident (no. 1): Foreign assets are only items of the kind named in Section 121 BewG that are attributable to the foreign state, such as real property or business assets in Spain. A balance at a Spanish bank does not belong to them. The Spanish tax levied on it is not credited in Germany.
- Deceased was not a resident (no. 2): Foreign assets are everything except German domestic assets under Section 121 BewG. Then the Spanish tax on Spanish bank balances is also creditable.
In the Block case (C-67/08, judgment of 12 February 2009), the CJEU considered, for a deceased resident in Germany, the non-credit of Spanish tax on a monetary claim against a Spanish bank to be compatible with the free movement of capital (Arts. 56, 58 EC) (Section 21 (2) no. 1 ErbStG).
A note on the Spanish side belongs here too: Spain disadvantaged non-residents in regional inheritance tax reliefs (CJEU, judgment of 3 September 2014, C-127/12, Commission v Spain); the rule was subsequently changed.
Example: Retiree Gerd lives in Cologne and holds a holiday home near Málaga and 150,000 euros in a Spanish bank account. His daughter Lena in Germany inherits. She can have the Spanish tax on the holiday home credited proportionately, but not that on the bank balance. Had Gerd lived only in Spain for more than five years, credit under Section 21 (2) no. 2 ErbStG would also cover the bank balance.
How far credit extends where regional Spanish taxes operate with reductions is not settled in every constellation. Where there is uncertainty, a binding ruling (verbindliche Auskunft) from the tax office under Section 89 (2) AO can be considered before implementing a structure; it is subject to a fee under Section 89 (3) to (7) AO. For the Spanish side, an enquiry to the local tax administration via an adviser on the spot should be considered.
Typical Errors and Checklist
- No choice of law despite moving. Without a choice of law, Spanish law applies with habitual residence in Spain. Make a will with an express choice of law and check older wills against Art. 83 EuErbVO.
- Uncoordinated wills. A German and a Spanish will that contradict each other or unintentionally revoke each other lead to dispute.
- Certificate of inheritance applied for in the wrong place. If the residence was in Spain, the German application fails on jurisdiction.
- Spanish bank balances without tax planning. With a deceased resident in Germany, a double burden without credit threatens.
- Deadlines overlooked. The German notification period, the five-year period of Section 21 ErbStG and the Spanish periods run independently of one another.
- Provision forgotten. Effective powers of attorney are also needed for the case of incapacity, and their usability in Spain should be clarified beforehand. The Spanish side (notary, tax number, register, regional tax) you coordinate with an adviser on the spot.
Conclusion
In an inheritance case with a connection to Spain, German law does not apply automatically. If the deceased last lived in Spain, Art. 21 EuErbVO leads in principle to Spanish law, which differs regionally. An express choice of law under Art. 22 EuErbVO secures German succession law, including German compulsory share law. The Spanish bodies then in principle remain competent, German courts only via Art. 5 and 7 EuErbVO. For tax purposes, in the absence of a treaty, Section 21 ErbStG with its limits decides, especially for Spanish bank balances. Anyone who coordinates will, matrimonial property regime, assets and advice on the spot early can save heirs time and dispute and reduce the risk of double tax.
Frequently Asked Questions
Does German inheritance law apply to a German who dies in Spain?
In principle only if he or she chose German law in a will or if his or her last habitual residence was in Germany despite a Spanish home. For wills made before 17 August 2015, a deemed choice of law under Art. 83 (4) EuErbVO may also come into consideration. Exceptionally, a manifestly closer connection to Germany under Art. 21 (2) EuErbVO can also lead to German law. Otherwise, under Art. 21 EuErbVO Spanish law applies in principle to the entire estate, including assets in Germany.
How do I word the choice of German law?
The choice of law belongs in a will or an inheritance contract. It should be declared expressly, for example: “For the succession to my estate I choose German law.”
Will my heirs get a German certificate of inheritance if I live in Spain?
In principle not. After the CJEU judgment in the Oberle case, jurisdiction for the certificate of inheritance is also governed by the EuErbVO, that is, by the last habitual residence. If you have chosen German law, the parties can bring about the jurisdiction of German courts under the conditions of Art. 5 and 7 EuErbVO.
Does the German compulsory share apply with a choice of German law?
Yes. With German law governing succession, German compulsory share law also applies in principle. Persons entitled to a compulsory share then receive a monetary claim amounting to half of their statutory share of inheritance, not a direct participation in the estate.
Do I have to pay inheritance tax in Germany and in Spain?
That is possible, since there is no double taxation treaty for inheritance tax. Under unlimited German tax liability, Spanish tax is credited under Section 21 ErbStG on application, to the extent it is attributable to foreign assets. If the deceased was a resident, Spanish bank balances do not count; the Spanish tax paid on them then remains without credit.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise Germans with a residence or property in Spain on structuring and handling German-Spanish inheritance cases, from the choice of law in the will through jurisdiction and proof of succession to questions of crediting foreign inheritance tax. Dr. Fiala has published extensively on emigration and asset protection. Get in touch with the firm without obligation to discuss your individual situation in an initial consultation.
