In a globalized world, families need legal certainty in multijurisdictional situations arising from the acquisition of assets in other jurisdictions, the relocation of their habitual residence, or the transfer of wealth between generations when the location of the deceased, the estate assets, or the heirs is of a complex nature. For this reason, we provide practical and strategic international advice on inheritance and succession planning, including assistance and coordination in the preparation of wills, inheritance agreements, inter vivos or mortis causa trusts, will substitutes, and institutions similar to trusts. In addition, we always provide integrated solutions from a tax perspective, in coordination with our Tax Law department, in order to anticipate for the client, the tax alternatives that may arise in cross-border successions.
From the Non-Contentious Family and Succession department, we assist the testator in the efficient design of a Spanish last will testament and its coordination with any wills that may need to be executed in other jurisdictions, so as to obtain the desired result in terms of tax efficiency and full respect for their wishes regarding the transfer of estate assets to the next generation. Naturally, we also assist beneficiaries and heirs, as well as executors, trustees, and other fiduciaries in the different phases of the succession process, as well as in the multi-jurisdictional administration of estate assets, preserving the universal estate until its final distribution among the beneficiaries designated by the testator.
In the field of international family law, the preventive solutions we offer firstly concern the regulation of the matrimonial property regime through the drafting of marital agreements (initial, modifying, confirmatory, etc.) that include jurisdiction clauses and choice of law agreements, in order to adapt the legal arrangement to the multijurisdictional nature of the family situation and provide legal certainty in an area that is often the subject of discrepancies between legal systems. For unmarried couples, a functional equivalent of the above is the signing of a cohabitation agreement that regulates the financial consequences of their relationship. Secondly, marital agreements also allow for the inclusion of agreements relating to a future divorce and, in this sense, we adapt the technique of the prenuptial agreement from Common Law systems to Spanish practice. These agreements in view of a future divorce, included in marital agreements, must be coordinated with the prenuptial agreement that has been—or will be—signed abroad depending on the location of the family circumstances. Thirdly, we can assist both spouses in drafting a proposed separation or divorce settlement agreement, when it is expected that the divorce will be amicable and not litigated in court; in Spain, mutual agreement divorces may be processed either through a notary or judicially.
Elderly and vulnerable individuals also form part of our client base. We protect their assets through Lasting Powers of Attorney in Common Law jurisdictions, and preventive powers of attorney in Civil Law jurisdictions, thus avoiding the need for court-appointed guardians, granting powers to make decisions about their personal and/or financial interests.
Among other matters, our Non-Contentious Family and Succession department frequently participates in multijurisdictional and domestic cases of the following nature:
- Cohabitation agreements, marital agreements, and agreements in anticipation of marital breakdown, with the multijurisdictional perspective required by the case.
- Assistance in drafting settlement agreements for judicial separation and uncontested divorce proceedings, including the tax analysis of the agreed measures.
- Analysis and issuance of opinions on international estate planning alternatives, considering the rules on determining the competent authority, conflict-of-law rules, potentially applicable succession rules, and the tax consequences in each of the jurisdictions involved.
- Drafting of universal or territorial wills, succession agreements, and other dispositions of last will, including the designation of the applicable law.
- Advice on alternatives to testamentary succession such as gifts, life insurance, etc.
- Advice on the tax regime of family businesses under the Inheritance and Gift Tax.
- Assistance in corporate and inheritance law matters to ensure the continuity of the family business, including family protocols.
- Notarial declaration of intestate heirs, acceptance and allocation of inheritance (partition operations).
- Advice to executors and partition agents, especially in relation to the foreign executor or administrator of the intestate estate (Probate), concerning the fulfilment of their duties in Spain.
- Preparation of legal opinions (affidavits) on the validity of wills executed in Spain or under Spanish law, for submission in Probate proceedings.
- Drafting of notarial preventive powers of attorney for future incapacity (Lasting Powers of Attorney).
- Support measures for elderly adults with disabilities (appointment of guardian), as well as recognition in Spain of measures granted abroad.
