SPAIN Law and Practice Contributed by: Álvaro Paniagua Rico and Borja López Pol, Anaford Abogados
2.4 Marital Property The matrimonial property regime applicable in Spain depends on the Autonomous Region where the spouses reside. By default in Spain, the regime regulated by the Civ - il Code is the community property regime. In other words, assets acquired by one or both spouses dur - ing the marriage are considered joint property and are divided equally upon dissolution of the regime, whether by divorce or death. This regime unifies marital property, with gains and debts shared equally, regardless of who generated them. That said, some Autonomous Regions establish dif - In general terms, when an asset or right is transferred, whether inter vivos (donation) or mortis causa (inher - itance), its tax value is updated for the next trans - fer. There are always exceptions to this rule, usually related to transfers that have not generated tax or have been subsidised in some way (for example, the transfer of a family business with a 95% subsidy). 2.6 Transfer of Assets: Vehicle and Planning Mechanisms One of the possibilities or tools established by the regulations is a 95% tax credit when transferring a family business with the characteristics explained in 1.2 Exemptions . The various autonomous communities have also developed tax credits for this type of superior assets. 2.7 Transfer of Assets: Digital Assets In terms of the transfer of digital assets, there is no significant difference from the transfer of other assets. That said, special attention must be paid to their phys - ical location, as their unique nature may be decisive in determining the applicable legislation. ferent regimes by default. 2.5 Transfer of Property As regards, it is critical to understand the origin of the funds that enabled the acquisition of the asset and the tax and legal treatment of the asset, bearing in mind
the residency of the owner and future inheritors or donors, as well as the location of the asset.
3. Trusts, Foundations and Similar Entities 3.1 Types of Trusts, Foundations or Similar Entities We can define both figures as follows. • A trust is a private contract whereby a person (the settlor or grantor) transfers an asset or right to another person (the trustee) to control and admin - ister it for the benefit of third parties (the beneficiar - ies), usually family members or close associates and which has effects vis-à-vis third parties. The trustee administers the assets on behalf of and in representation of the beneficiaries. This figure is not recognised under civil or tax law in Spain. Nevertheless, it is possible to adapt common law structures to fit civil ones. • A private foundation is a legal entity created by the donation of assets from a person or company for specific purposes established in the founding charter. A private foundation has: (a) a specific purpose; (b) legal personality; and (c) legal and economic independence. It is not possible to create a private foundation in Spain, but foreign foundations (e.g. Panamanian or Austrian foundations) are recognised in our jurisdic - tion. 3.2 Recognition of Trusts Common Law v Civil Law The trust is a legal concept closely linked to English common law and accepted in most Anglo-Saxon countries, including the United States and the Com - monwealth (which has more than 50 member coun - tries). It enjoys a high degree of protection and legal cer - tainty in countries where it is recognised. However, in countries whose legislation is based on civil law, it presents greater difficulties and legal problems (including non-recognition by the courts).
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