Brussels IV Regulation — Choosing Which Country’s Law Applies to Your Estate

The planning lever most expats miss in Spain is Brussels IV — without an explicit choice-of-law election, Spanish forced-heirship decides who inherits, not you, however your home-country will is written.

What Is the Brussels IV Regulation?

EU Regulation 650/2012, commonly known as Brussels IV (or the EU Succession Regulation), is a European Union regulation that harmonises private international law rules for cross-border successions across EU member states. It came into force on 17 August 2015 and applies in all EU countries except Denmark and Ireland, which opted out.

Before Brussels IV, each EU country applied its own private international law rules to determine which succession law governed a cross-border estate. This created significant uncertainty and the risk of conflicting claims in different jurisdictions. Brussels IV replaced this patchwork with a single, uniform rule for the entire EU.

The regulation covers three key areas: which country’s succession law applies (applicable law), which country’s courts have jurisdiction to handle the probate (jurisdiction), and the recognition and enforcement of succession decisions across EU borders. For most expats in Spain, the applicable law question is the most important.

The Default Rule: Law of Habitual Residence

Article 21(1) of Brussels IV establishes the default: the law of the country where the deceased had their habitual residence at the time of death applies to the succession as a whole. This means one law governs the entire estate — both movable assets (bank accounts, investments, personal property) and immovable assets (real estate) — regardless of where those assets are located.

For a British national living permanently in Spain, this means Spanish succession law would apply by default to their entire worldwide estate. Spanish succession law includes forced heirship rules (legitima), which reserve two-thirds of the estate for the deceased’s children and, in some cases, parents. This can conflict significantly with the testator’s wishes, particularly if they want to leave their estate to a spouse, partner, or non-family member.

“Habitual residence” is not precisely defined in the regulation. Recital 23 of the preamble provides guidance: it should be determined by an overall assessment of the deceased’s life circumstances in the years before death, including the duration, regularity, and reasons for their presence. For most long-term expats on the Costa del Sol, there is little doubt that their habitual residence is Spain.

The Article 22 Election: Choosing the Law of Your Nationality

Article 22 provides the crucial exception to the default rule. It allows any person to elect, in their will, that the law of their nationality at the time of making the election or at the time of death should apply to their entire succession. This election must be made expressly in a disposition of property upon death (typically a will) or must be demonstrated by the terms of such a disposition.

For a British national living in Spain, an Article 22 election means that English law (or Scottish law, or the law of Northern Ireland, as applicable) would govern their succession instead of Spanish law. Since English law has no forced heirship rules, the testator has complete freedom to distribute their estate as they wish — they can leave everything to their spouse, to charity, or in any other arrangement they choose.

The election is straightforward in practice. The testator includes a clause in their Spanish will stating, for example: “I elect that the law of England and Wales shall apply to my succession as a whole, in accordance with Article 22 of EU Regulation 650/2012.” This clause should also appear in any UK will that the testator holds.

British Expats After Brexit

Brexit raised immediate questions about whether British nationals could still benefit from Brussels IV. The answer is nuanced but largely favourable.

Brussels IV is a regulation of the EU, and it determines applicable law from the EU perspective. Spain applies Brussels IV regardless of whether the deceased or their country of nationality is an EU member. The regulation’s rules are universal in application — Article 20 states that the law designated by the regulation applies whether or not it is the law of a member state.

This means that when a British national dies habitually resident in Spain, Spain’s courts will apply Brussels IV to determine the applicable law. If the British national made a valid Article 22 election choosing the law of their nationality (English, Scottish, etc.), Spanish courts will recognise and apply that election, applying English or Scottish succession law to the estate.

The key point is that the UK is not bound by Brussels IV, but Spain is. Spain will respect an Article 22 election by a British national, because the regulation requires it to apply the chosen law — even if that law is the law of a non-EU country. From the UK side, the UK’s own private international law rules will determine how UK-situated assets are handled, typically applying the law of the domicile for movable property and the lex situs (law of the location) for immovable property.

In practice, the combination of a Spanish will with a Brussels IV election and a coordinated UK will provides comprehensive coverage for most British expats. The Spanish will handles Spanish assets under English succession law (via the election), and the UK will handles UK assets under English law (which applies naturally).

How to Make a Brussels IV Election

Making the election requires specific steps to ensure it is valid and effective:

1. Include an express clause in your Spanish will. The will should state clearly that you elect the law of your nationality (specify which: England and Wales, Scotland, or Northern Ireland) to apply to your succession as a whole, pursuant to Article 22 of EU Regulation 650/2012.
2. Mirror the election in your UK will. While the UK is not bound by Brussels IV, including the election in your UK will demonstrates consistency and reduces the risk of challenge.
3. Ensure both wills are coordinated. The Spanish will should cover Spanish assets and the UK will should cover UK assets. Each should explicitly state that it does not revoke the other. Failure to coordinate is one of the most common estate planning errors.
4. Execute the Spanish will before a Spanish notary. This ensures it is formally valid under Spanish law and is registered with the General Registry of Last Wills (Registro General de Actos de Ultima Voluntad).
5. Review both wills periodically. Changes in family circumstances (marriage, divorce, birth of children), changes in nationality, or changes in the law may require updates.

Implications for Forced Heirship

The most significant practical effect of a Brussels IV election for British expats is the ability to avoid Spanish forced heirship rules. Under Spanish law, children are entitled to two-thirds of the estate as legitima, and the surviving spouse has usufruct rights. For testators who wish to leave a different distribution — for example, leaving everything to a surviving spouse, or providing for a partner from a second relationship — forced heirship is a major obstacle.

By electing English or Scottish law under Article 22, the testator replaces Spanish forced heirship with full testamentary freedom. There are no forced heirs under English law — a testator may leave their estate to whomever they choose. (Note: English law does allow family members to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but this is a discretionary court application, not an automatic entitlement.)

It is worth noting that a Spanish court could theoretically invoke the public policy exception (Article 35 of Brussels IV) to refuse to apply a foreign law that is manifestly incompatible with Spanish public policy. However, this exception has been interpreted very narrowly across the EU, and there is no established case law of Spanish courts refusing to apply English succession law on this basis.

European Certificate of Succession

Brussels IV also introduced the European Certificate of Succession (ECS), a standardised document that proves a person’s status as heir, legatee, executor, or administrator in any EU member state. The ECS is issued by the competent authority (usually a court or notary) in the country whose courts have jurisdiction over the succession.

The ECS is particularly useful for cross-border estates, as it is recognised across the EU without any special procedure. A British heir inheriting property in Spain can use the ECS to register the transfer at the Spanish Land Registry without needing to go through a separate Spanish recognition process.

Frequently Asked Questions

Related Guides

For comprehensive estate planning in Spain, see our related resources:

• Spanish Inheritance Tax Calculator 2026 — Estimate your IHT liability
• Intestate Succession in Spain — What happens without a will
• International Estate Planning in Spain
• Forced Heirship in Spain: How It Works
• Spanish Will vs UK Will: Do You Need Both?
• Spanish Will for Non-Residents