When a couple has lived together for many years, it is easy to assume that if one partner dies, the other will be protected in much the same way as a husband or wife. In Andalusia, for example, that assumption can lead to significant problems.
The first question is what rights the surviving partner has to inherit the assets. The second is how that inheritance will be taxed. Marriage, a registered civil partnership and simply living together can lead to very different outcomes.
In some cases, the difference in Spanish Inheritance Tax can amount to tens of thousands of euros. Below, we explain what couples should consider and why marriage may be worth serious consideration when it fits their personal circumstances.
What happens to your partner if you die and you are not married?
Many unmarried couples organise their lives in exactly the same way as married couples. They buy a home, share expenses, hold joint accounts and may have lived under the same roof for decades.
However, the length of the relationship does not by itself determine the surviving partner’s inheritance rights.
In Andalusia, the regional authorities make clear that a civil partnership does not have the same legal effects as marriage in inheritance matters. Andalusian legislation on civil partnerships also does not give the surviving partner the inheritance rights that the Spanish Civil Code grants to a spouse.
This becomes even more important when the couple has never formally registered as a civil partnership.
A 20-year relationship can still create inheritance problems
Consider a couple who have lived together for twenty years. Their main home belongs solely to one of them. They never married, did not register as a civil partnership and the owner dies without properly planning their estate.
The surviving partner may then discover that a relationship which family and friends considered completely established does not automatically give them the legal position they expected.
If there is also no Will, it will be necessary to determine who the heirs are under the succession law that applies. Depending on the circumstances, children, parents, siblings or other relatives may have inheritance rights.
Where Spanish common civil law applies, a surviving spouse has a recognised position under the Spanish Civil Code. For example, the spouse has certain usufruct rights and, where there are no descendants or ascendants, inherits ahead of collateral relatives in an intestate succession.
An unmarried partner does not automatically acquire that same position simply because the couple has lived together for many years.
Inheriting assets and paying Inheritance Tax are separate issues
It is useful to separate two questions that are often confused.
- The first is whether the partner can receive the assets.
- The second is how much tax they will have to pay if they do.
A Will can be decisive for the first question because it allows beneficiaries to be appointed within the limits of the succession law that applies. However, naming your partner as an heir in a Will does not automatically place them in the same tax category as a spouse.
This distinction explains why an estate plan that appears to be adequate can still result in a much higher tax bill than expected.
Living together for many years does not guarantee that your partner will inherit
One of the most risky assumptions in estate planning is that a long period of cohabitation eventually creates the same rights as marriage.
In Andalusia, civil partnership rules provide a formal procedure through which the relationship can be officially recognised and registered. The regional government maintains a Civil Partnership Register and sets specific requirements for registration.
Simply living together needs to be considered separately.
“Everything will go to my partner” may not work as expected
When someone says they want their partner to receive everything, it is important to check whether that intention is properly reflected in their estate planning and whether the applicable law allows the estate to be distributed in that way. Where Spanish law applies, forced heirship rules and the rights of certain family members can limit a person’s freedom to distribute their entire estate as they wish.
In an international succession, the law of another country may also apply. Before stating that someone can leave their entire estate to their partner, it is therefore necessary to consider their nationality, habitual residence, family circumstances and the law that will govern the succession.
If the property belongs to both partners, the survivor keeps their own share
Another common situation is worth clarifying.
If two people each own 50% of a property and one dies, the surviving partner’s 50% remains theirs. The inheritance relates to the share that belonged to the deceased.
The next question is who inherits that share and what tax consequences follow. This can become particularly important when the property is the couple’s main asset and the survivor had assumed that they would automatically become the sole owner.
What changes if you are married?
Marriage provides a much more clearly defined inheritance position where Spanish common civil law applies.
The Spanish Civil Code recognises rights for the surviving spouse even where there are descendants or ascendants. The extent of those rights depends on the family circumstances and the structure of the estate, so being married does not necessarily mean that the surviving spouse receives the deceased’s entire estate.
Even so, the spouse’s legal position is clearly recognised.
Marriage can also make a major tax difference in Andalusia
The difference becomes particularly apparent when Spanish Inheritance Tax is considered.
In Andalusia, spouses fall within Group II for kinship purposes and benefit from significant tax advantages. For inheritances arising from 2022 onwards, the kinship allowance can reach €1,000,000 for taxpayers in Groups I and II. In addition, inheritances received by these groups benefit from a 99% reduction in the resulting tax liability.
For Spanish Inheritance and Gift Tax purposes, relatives are classified into different groups according to their relationship with the person making the gift. Group I includes children and other descendants under the age of 21, while Group II includes children and descendants aged 21 or over, as well as spouses, parents and other direct ascendants.
Formalising a relationship can therefore affect both inheritance rights and the amount of tax payable.
Why we recommend considering marriage where appropriate
Marriage is a personal decision and every couple will have their own reasons for choosing whether or not to marry.
From a purely inheritance-planning perspective, where the aim is to place the surviving partner in a legally protected position, marriage generally provides a particularly clear framework.
A spouse has rights recognised under inheritance law and also receives highly favourable tax treatment in Andalusia.
For that reason, where a couple is able and willing to marry, we recommend seriously considering it as part of their estate planning. This can be particularly relevant where there is a valuable property, significant assets accumulated over many years or a clear intention for the surviving partner to receive those assets with as few complications as possible.
What protection does a registered civil partnership provide in Andalusia?
Couples who do not want to marry do not have to leave their relationship entirely unformalised. A registered civil partnership can provide very significant tax protection in Andalusia.
For tax purposes, a registered civil partner is treated like a spouse
Andalusian tax rules provide that civil partnerships registered in the Andalusian Civil Partnership Register, or equivalent registers maintained by other public authorities, are treated in the same way as spouses for the purposes of allowances, tax reductions and multiplying coefficients under Spanish Inheritance Tax.
This means that a properly registered civil partner can, where the relevant requirements are met, benefit from the same 99% tax reduction available to a spouse.
The difference compared with a couple who simply live together can be substantial.
Equal tax treatment does not automatically create the same inheritance rights
This is one of the most important distinctions in the article.
The Andalusian regional authorities explain that the Civil Partnership Act does not regulate inheritance in favour of the surviving partner in the same way as marriage. They also explain that, under the Spanish Civil Code, a Will is required if assets are to be left to the surviving partner from the freely disposable part of the estate.
Registering as a civil partnership may therefore resolve an important part of the tax issue, but estate planning is still necessary.
Saying “we are civil partners” does not always mean you are registered
In everyday conversation, couples often describe themselves as civil partners simply because they live together in a stable relationship.
For legal and tax purposes, it is important to check whether the relationship has actually been formally recognised and registered in accordance with the relevant requirements.
Andalusia has a specific registration procedure and, among other requirements, at least one member of the couple must have their habitual residence in a municipality within the region. If a couple assumes they are protected for tax purposes because they have lived together for many years, it is worth confirming whether they actually meet the legal requirements.
Why a Will remains essential
Marriage or registration as a civil partnership does not remove the need for proper estate planning.
A Will allows you to state clearly what you want to happen to your assets and can reduce uncertainty, additional procedures and disputes between family members. For international clients, it is even more important because assets, relatives and succession documents may be spread across several countries.
A Will allows you to leave assets to your partner within the applicable limits
When someone wants to give particular protection to their partner, a Will allows the succession to be organised much more precisely than relying solely on intestacy rules.
How much freedom a person has to distribute their assets will depend on the law governing the succession.
Where Spanish common civil law applies, the existence of descendants or other forced heirs may restrict the portion of the estate that can be freely allocated. Foreign nationals may also have the option of choosing the law of their nationality in their Will, which can significantly affect the planning.
Making a Will does not turn an unregistered partner into a spouse for tax purposes
This point deserves particular attention. Imagine that someone leaves €300,000 in their Will to a partner with whom they have lived for twenty years.
The Will may allow the partner to inherit those assets, subject to the succession rules that apply. However, if the couple is not married and does not meet the requirements to be treated as a registered civil partnership for tax purposes in Andalusia, the beneficiary may face a very different tax treatment.
Do you need a Spanish Will if you already have one in your home country?
This is a question we regularly receive from international clients. Owning assets in Spain does not automatically require you to make a second Spanish Will. A foreign Will can have effect in Spain if it complies with the relevant requirements. However, having a Will specifically coordinated with your Spanish assets can make the future administration of the estate considerably easier.
You can read more about this in our guide on whether you need a Spanish Will if you already have one in your home country. If you have not yet made arrangements for your estate, you can also find out how we can help you make a Will in Spain.
How much difference can Spanish Inheritance Tax make?
The tax position helps explain why it is worth dealing with these issues before a problem arises.
In Andalusia, a properly registered civil partner can receive the same tax treatment as a spouse. A partner who does not qualify for that treatment may instead fall within Group IV, which applies to more distant relatives and people without a recognised family relationship falling within the earlier groups. The difference between the two can be considerable.
Group IV generally includes more distant relatives, such as cousins and relatives beyond the third degree, as well as people who are not legally recognised as relatives for inheritance tax purposes. This can include an unmarried partner where the relationship does not meet the legal requirements to be treated in the same way as a spouse.
The difference between the two can be considerable, as Group IV beneficiaries generally have access to far fewer tax allowances and benefits than spouses or close family members.
A simplified example: inheriting €300,000
Imagine an inheritance consisting of €300,000 in financial assets. For illustrative purposes only, assume that Andalusian Inheritance Tax rules apply and that there are no other allowances or special circumstances.
Case 1: spouse or civil partner treated as equivalent for tax purposes
Taxpayers in Group II, together with those treated as equivalent, have a kinship allowance of up to €1,000,000. On an inheritance of €300,000, that allowance could reduce the taxable base to zero, provided the applicable requirements are met.
Case 2: unmarried partner who does not qualify for equivalent tax treatment
If the same beneficiary falls within Group IV and the taxable base were €300,000, the current Andalusian tax scale would produce an initial tax liability of €53,620. Group IV currently attracts a multiplying coefficient of 1.9, taking the theoretical tax bill to approximately €101,878.
The difference in this simplified example is more than €100,000.
This example is deliberately straightforward and is intended only to show how the beneficiary’s tax category can affect the final amount. A real tax calculation may vary depending on the nature of the assets, specific allowances, life insurance, the main residence, the residence of the deceased and beneficiary, international rules and other circumstances.
Even so, it illustrates why assuming that “making a Will is enough” can become very expensive.
A registered civil partnership can make a decisive difference
Andalusia currently provides particularly favourable tax treatment for spouses and civil partners who meet the requirements for equivalent treatment. Formalising the relationship can therefore have significant financial consequences long before an inheritance actually arises.
Estate planning is best carried out while both partners are able to decide calmly what they want to happen.
Could marriage be the best way to protect your partner?
For many couples, it can be.
The answer depends on personal, family and financial circumstances, but marriage combines two particularly important advantages in Andalusia: recognised inheritance rights and favourable tax treatment.
Where there are valuable assets, children from previous relationships, property in several countries or a clear intention to protect the surviving partner financially, leaving the relationship unformalised creates more issues that may need to be resolved later.
“We have been together all our lives” does not replace legal documents
A couple may have lived together for thirty years and have a completely established relationship.
Problems can arise when that personal reality does not match the categories used by inheritance and tax law.
The Spanish tax authorities need to determine the legal relationship between the deceased and the person receiving the inheritance. A Notary must establish which law applies, who the heirs are and what the Will provides. The Land Registry requires documentation that allows property to be transferred correctly.
The length of the relationship forms part of the couple’s personal history, but these procedures require legally recognised rights to be documented.
If you do not want to marry, there are other measures worth considering
Marriage may not suit every couple’s circumstances or preferences.
In those cases, it is advisable to review at least four issues:
- whether registering as a civil partnership is possible and appropriate;
- what each partner’s current Will provides;
- who legally owns the main assets;
- what the tax consequences would be if either partner died.
Effective estate planning may combine several measures.
The important point is to understand the likely outcome while there is still time to make changes.
What changes if you are foreign nationals or have assets in several countries?
For many Malaga Solicitors clients, estate planning has an international element. A person may be British, German, Dutch or French, live permanently in Málaga, own a property in Spain and still hold bank accounts or property in their country of origin.
In these situations, it is necessary to determine which succession law applies.
Habitual residence may determine the law governing the succession
The European Succession Regulation provides, as a general rule, that a succession is governed by the law of the State in which the deceased had their habitual residence at the time of death.
The same Regulation allows a person to choose the law of the State whose nationality they hold to govern their succession. That choice must be made in a disposition of property upon death, usually a Will. This can have important consequences for a foreign national who has moved permanently to Spain.
Succession law and Spanish Inheritance Tax remain separate issues
Choosing your national law in a Will can determine matters such as who the heirs are and what rights they have.
That choice does not automatically remove Spanish tax liability where an inheritance is subject to Spanish Inheritance Tax.
International estate planning should therefore consider the civil succession rules and the tax position together.
If you have several Wills, they need to work together
It is also common for a foreign national to have a Will signed in their home country and later make a second Will dealing with their Spanish assets.
This can work properly when both documents are correctly coordinated. If they contain conflicting provisions, or one accidentally revokes the other, the future administration of the estate can become considerably more complicated.
For this reason, succession documents should be reviewed together, particularly after moving to Spain, buying property or experiencing a change in family circumstances. Malaga Solicitors discusses this issue in more detail in our guide to Spanish Wills and Wills made abroad.
What should you review to protect the surviving partner?
Estate planning starts with understanding the couple’s current position. It is worth reviewing:
- whether you are married;
- whether there is a formally registered civil partnership;
- whose name the properties are registered in;
- whether there are children from the relationship or previous relationships;
- whether either partner’s parents are still alive;
- which Wills currently exist;
- where each person has their habitual residence;
- each person’s nationality;
- whether the Will contains a choice of governing law;
- which assets are located in Spain and in other countries;
- what Spanish Inheritance Tax consequences the surviving partner could face.
Not all of these points will carry the same weight in every case. A retired couple with one property in Málaga and no children may require very different planning from a family with children from previous marriages and assets divided between Spain and the United Kingdom.
Where there is an international element, reviewing the position as a whole helps avoid solving one problem while inadvertently creating another.
If you need information about what happens after a death, you can also read about Malaga Solicitors’ inheritance and estate services in Spain for international clients.
Frequently asked questions about unmarried couples and inheritance in Andalusia
The length of the relationship does not by itself give your partner the same inheritance rights as a spouse. If you want your partner to receive assets, it is advisable to review the succession law that applies and make an appropriate Will. In Andalusia, civil partnership legislation does not automatically give a surviving partner the inheritance rights granted to a spouse.
Not necessarily. A registered civil partner benefits from important tax treatment equivalent to that of a spouse in Andalusia, but this does not mean they automatically receive all of the same civil inheritance rights. A Will remains particularly important.
Where the civil partnership satisfies the registration and equivalence requirements under Andalusian rules, the partner is treated in the same way as a spouse for the purposes of allowances, reductions and multiplying coefficients. This can provide access to benefits such as the 99% reduction in the tax liability where the relevant conditions are met.
A Will is an essential planning tool, but the tax and family position should also be considered. Naming an unmarried partner as an heir does not automatically change their kinship group for Spanish Inheritance Tax purposes if they do not qualify as a spouse or equivalent registered civil partner.
It depends on the circumstances. In Andalusia, a properly registered civil partner can benefit from very favourable equivalent tax treatment. Marriage also provides statutory inheritance rights that a civil partner does not automatically receive. Where marriage suits the couple’s personal circumstances and the aim is to protect the survivor, it is often a particularly straightforward option from an inheritance-planning perspective.
The European Succession Regulation may apply. As a general rule, the law of the deceased’s habitual residence governs the succession, although a person can choose the law of their country of nationality in their Will. Each case should be reviewed individually, particularly where assets or family members are located in several countries.
Yes. Regulation (EU) 650/2012 allows a person to choose the law of a State whose nationality they hold at the time of making the choice or at the time of death. The choice must be properly included in a disposition of property upon death.
A long-term relationship still needs estate planning
Being with someone for many years does not, by itself, guarantee that after a death the surviving partner will receive the estate in the way both people expected.
The difference between being married, being in a registered civil partnership and living together without formally registering the relationship can affect both inheritance rights and the amount of Spanish Inheritance Tax payable. In Andalusia, the tax difference can be particularly significant.
Where marriage fits the couple’s personal circumstances, we recommend considering it seriously because it generally provides clear inheritance protection and favourable tax treatment. If the couple prefers not to marry, it is worth considering registration as a civil partnership together with a properly prepared Will.
At Málaga Solicitors, we can review your family and financial circumstances, explain what would happen to your assets if one partner died and advise you on the options available to protect the survivor. If you live in Spain, own assets here or would like to review your estate planning, please complete the form below so that we can assess your circumstances.
This tax information is provided for general information and should be not considered 100 % correct for all cases, so for precise tax advice on your particular circumstances you must seek for professional advice
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