Thinking your jointly owned Spanish property automatically passes to your partner if you die?
Think again.
This common UK/US assumption is dangerously wrong in Spain and can leave your loved ones in a legal nightmare.
This guide breaks down the real inheritance process, the risk of forced heirship, and the simple steps you must take to protect your partner and your Costa del Sol home.
Owning a sun-drenched villa in Marbella or a beautiful apartment overlooking the sea in Estepona is a dream come true for many of our UK and US clients.
You sign the deeds (Escritura) as joint owners, pop the cava, and look forward to your new life on the Costa del Sol.
But a critical question often gets overlooked in the excitement: what happens to your jointly owned Spanish property when one of you passes away?
For many expats, the answer is based on a dangerous misconception. In the UK or US, you may be used to “joint tenancy,” where the property automatically passes to the surviving owner.
This is NOT the case in Spain.
When a joint owner of a Spanish property dies, their share does not automatically transfer to the surviving partner. Instead, that share becomes part of their estate and must be formally passed to the legal heirs through the Spanish inheritance process.
This process can be complex, costly, and emotionally draining for the surviving partner. But it doesn’t have to be.
As English-speaking real estate and legal specialists on the Costa del Sol, PCC Property is here to bust the myths and provide a clear path forward.
This guide will explain exactly what happens and, more importantly, how you can plan today to protect your property and your loved ones.
This article will provide clear answers to your most urgent questions. You will learn:
This is the single most important concept for foreign buyers in Spain to understand. The way you own property here is fundamentally different from back home.
In the UK, many couples own property as “joint tenants.” In the US, this is often “joint tenancy with right of survivorship.”
This means that when one owner dies, their share automatically and immediately transfers to the surviving joint tenant(s).
The property does not enter the deceased’s estate and does not need to go through the complex probate process. It is a simple, clean transfer.
Spain does not have the concept of “right of survivorship.” When you buy a property jointly, you own it in Comunidad de Bienes (a community of goods).
This means you each own a distinct, individual share (e.g., 50% each). When you die, your 50% share does not go to the surviving co-owner. It passes to your legal heirs, who are determined either by your will or, if you don’t have a valid one, by Spanish law.
This also means your surviving spouse or partner must go through a formal legal process to have your share transferred to them—and they may not be the only person entitled to it.
If you are the surviving partner, you cannot simply sell or re-mortgage the property.
The Land Registry (Registro de la Propiedad) will show the deceased as a 50% owner until the inheritance process is complete.
Here is a simplified overview of the steps involved.
The entire process is managed by a Spanish Notary. You (or your legal representative) will need to gather several key documents:
Before the property can be transferred, the heirs must pay Spanish Inheritance and Gift Tax. This must be calculated and paid within six months of the death (though an extension can be requested).
The good news? Here in Andalucía the inheritance tax rules are very favourable. There are significant tax-free allowances for spouses, children, and parents, meaning many will pay little to no tax. However, the calculation is complex and professional advice is essential.
Once the tax is paid, the Notary prepares a new deed.
This is the “Deed of Acceptance and Adjudication of Inheritance,” where the heirs formally accept the inheritance (including the 50% property share) and it is “adjudicated” or assigned to them.
Only after this new deed is signed and all taxes are paid can you take the paperwork to the Land Registry.
They will then officially update the property records, removing the deceased’s name and registering the heirs as the new owners of that share.
Here is the second major challenge for expats. Even if you have a Will, Spanish law includes la legítima, or “forced heirship” rules.
This law dictates that a portion of your estate (up to two-thirds) must be reserved for specific “forced heirs.” These are:
This means that under Spanish law, you cannot simply leave 100% of your share to your surviving spouse if you have children.
This can come as a profound shock and create immense difficulty, as your children could legally inherit a portion of your partner’s home.
Fortunately, there is a powerful and simple solution. A key EU Succession Regulation (known as “Brussels IV”) allows you to elect for the law of your nationality to govern your entire Spanish estate.
By making a simple Spanish Will and clearly stating this election, you can effectively bypass Spanish forced heirship rules.
This means a UK national can elect for English law to apply. An American can elect for the law of their state. This allows you to leave your 50% share of the property to whomever you choose—most commonly, your surviving spouse.
This is a vital step that PCC Legal handles for our clients every day.
At PCC Property, we see two scenarios.
The first is stressful and costly. The second is simple and secure.
This is what happens when no planning is in place.
Your grieving partner is left in a legal maze. They are scrambling to find documents, facing a language barrier, battling a 6-month tax deadline, and suddenly discovering that a portion of their home may legally belong to someone else due to forced heirship.
It can take months, or even years, and cost thousands in complex legal fees to resolve.
This is the “peace of mind” plan we build for our clients. Because we are not just a real estate agency but part of a group with in-house legal and wealth management experts, we can solve this problem holistically.
Does my UK Will cover my Spanish property?
It can, but it is far more complicated, expensive, and time-consuming to use.
Your UK Will must be granted probate in the UK, then be officially translated and legalised (with the Apostille) before it can even be presented to the Spanish Notary.
A Spanish Will specifically for your Spanish assets is infinitely simpler and faster.
Do I automatically inherit my spouse's half of our Spanish property?
No.
This is the most common and dangerous misconception.
The deceased’s share becomes part of their estate and must be passed to their legal heirs through the formal Spanish inheritance process.
What is Spanish "forced heirship"?
It is a Spanish law that reserves a portion of an estate for “forced heirs,” typically children.
This can prevent you from leaving your entire share of the property to your spouse.
However, as an expat, you can use the Brussels IV regulation in a Spanish Will to elect for your home country’s law to apply, thus bypassing this rule.
What taxes are involved when inheriting property on the Costa del Sol?
There are two main taxes:
How long does the Spanish inheritance process take for an expat?
If you have a clear Spanish Will and all your paperwork is in order, our legal partners can often complete the process in 3 to 6 months.
Without a Spanish Will, or if there are disputes, it can drag on for over a year.
Owning a joint property on the Costa del Sol is a wonderful dream, but protecting that dream requires proactive planning. The rules are not the same as back home, and assuming they are can lead to a legacy of stress, cost, and legal complications for your loved ones.
The most dangerous myth is the “automatic” right of survivorship—it simply does not exist in Spain.
The most powerful solution is a simple, properly-draughted Spanish Will.
Don’t leave your partner with a complex legal problem during a time of grief. At PCC, we take care of everything. Our in-house Legal, Wealth, and Property experts work as one team to provide a seamless, 360-degree plan to protect your investment and your family.
We’ve Moved Offices on 1st August 2025!
Private Client Consultancy is excited to announce that we have moved to a brand-new office space, designed to better serve our clients and reflect our continued growth.
Effective Date: Friday, 1st August 2025
New Address: Urb Jazmin De Miraflores, C. Jazmín, 2, Mijas Costa 29649, Malaga, Spain
Our phone numbers and email addresses remain unchanged.
All in-person meetings scheduled from 1st August onwards will take place at our new location. Please update your records accordingly.
We look forward to welcoming you to our new space!
Check out our detailed area guides along the Costa del Sol and Algarve.
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