Mistakes made when making a Spanish Will- Part III

This week I will talk about a mistake that is made after making a Spanish Will. I am talking about marriage.

Obviously, I am not saying that marriage is a mistake (although some of my divorced friends may have something to say in this respect…). It is what happens with the marriage what worries me.

In certain jurisdictions, like England for example, when  you marry any existing Will is automatically revoked. This means that if you had made a Will and you marry or re-marry for the second time, that Will gets revoked. This is quite clear when it comes to English Wills but what is the position with respect to Spanish Wills?

Spanish law does not contemplate a similar scenario. Basically, if you marry your Will is not automatically revoked. Therefore, it is necessary to revoke it, otherwise that Will continues to be valid.

The problem arises with English nationals owning property in Spain as Spanish law states that, in general terms, English law should be applied to the Spanish Estate (although there are some exceptions which will be explained in a future article). If this is the case and we do have to apply English law to the Spanish Estate, then clearly any marriage will also revoke any Spanish Will granted before tying the knot. This means that we need to be very careful if we marry as we may be revoking the Spanish Will.

The truth is that Notaries and Land Registrars in Spain are not usually aware of this peculiarity of English law and therefore in many occasions this issue is not picked up when dealing with the Spanish estate. However, this situation can cause potential problems in the future, mainly as Notaries and Registrars are becoming more and more versed in international private law matters. The increased pressence of inmigration and North-Europeans retirees in Spain is forcing those professionals to update their knowledge of international private law at considerable speed and therefore are more likely to be able to detect scenarios like the one I have described above.

Having said that, what should you do if you marry and have assets in Spain?

If you have granted a Spanish Will before being married then it is advisable to grant a new one. If you have not granted a Spanish Will then there is nothing to fear, although it would still be advisable to grant one to ensure that you provide for your loved ones.

As always it is better to be safe than sorry or as we say in Spain “Más vale prevenir que curar”.

2 thoughts on “Mistakes made when making a Spanish Will- Part III

  1. Hello, I found this article very interesting. My partner died recently. The house we lived in belonged to me, I had to sell it and move to a smaller house as I have no income. Me and my partner owned a house jointly which we bought for his uncle and aunt to live in. There is a mortgage on this house which I am still paying but cannot afford. My partner left his half of the house to his five children. They will not come to Spain to claim the will or send the death certificate. I cannot sell the house and I cannot have it repossessed without it causing me problems. My legal advisor and a solicitor are looking at ways to help. It has been seven months since my partner died. Have you come across this problem before?

  2. Hi Shirley,

    Yes, I have come across similar situations in the past and is not easy. If the children are not cooperating you will have no other option than to threat them with legal action and force her to either accept or reject the estate. In most cases, the children will then react when receiving the letter before action. In other occasions, they may wait until they get the Claim notified but one way or another there should be a reaction. My advice would be to take a more hard-ball approach to the matter and ask your lawyer to send them a letter before action giving them 7 to 10 days to respond.

    I hope this helps.

    Antonio

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