SPAIN Law and Practice Contributed by: Álvaro Checa, Miguel Checa, José María Vargas-Machuca Reyes and Andrea Fernández Grymierski, KINSHIP
Claw-Back Rules for Lifetime Transfer Forced heirship provisions, as described in 3.2 Forced Heirship , may be protected against lifetime transfers through claw-back actions brought against the donee. Such actions seek either the reduction of lifetime gifts that infringe the forced heirship quotas or their inclu- sion in the estate for the purposes of calculating the reserved portion. Claw-back provisions apply both to interspousal gifts and to transfers to third parties. The relevant value is the value of the gift at the time it was made, although this value must be updated to reflect its value at the time of the succession. Notably, there is no time limi- tation on the claw-back of gifts; therefore, in principle, all lifetime gifts may be brought into account for the purposes of succession. 4.2 Prenuptial and Postnuptial Agreements Under Spanish law, spouses are free to choose their matrimonial property regime. The main regimes avail- able are: • community of property ( sociedad de gananciales ); • separation of property ( separación de bienes ); and • participation in gains ( régimen de participación en ganancias ). The choice is made through a matrimonial property agreement ( capitulaciones matrimoniales ), which must be executed before a Spanish notary public and reg- istered with the Civil Registry in order to be effec- tive against third parties. These agreements may be entered into either before or after the celebration of the marriage. If concluded after the marriage, the spouses dissolve the previously applicable matrimonial property regime. They may choose either to liquidate and distribute the existing assets at that time or to defer liquidation, depending on their planning objectives. In addition to selecting a specific matrimonial property regime, spouses may also choose the law applica- ble to their matrimonial property regime pursuant to Regulation (EU) 2016/1103. The applicable law may be that of the nationality of either spouse or of the habitual residence of either spouse at the time the
one-third of the estate if there are three children or fewer, and one-half of the estate if there are four children or more. • Navarra allows significantly greater testamentary freedom, as its forced share is largely formal in nature. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections The determination of the matrimonial property regime is a fundamental element of succession planning, as it directly affects the composition of the estate and the division of assets upon dissolution of the marriage, whether by death or divorce. Matrimonial Property Regime During Life The applicable regime is determined by the conflict- of-law rules set out in Regulation (EU) 2016/1103 for marriages concluded after its entry into force (29 January 2019), and by Spanish domestic private inter- national law (namely, the Spanish Civil Code) for mar- riages celebrated prior to that date. As in succession law, several Autonomous Communities have enacted their own matrimonial property legislation. Under the Spanish Civil Code, the default matrimonial property regime is community of property. All assets acquired during the marriage, as well as income gen- erated from separate property, are deemed commu- nity property. The administration and disposition of community property requires the joint participation of both spouses, and neither may dispose of such assets unilaterally. Gratuitous transfers of community prop- erty carried out without the consent of both spouses are void. Spouses may voluntarily contribute separate assets to the community estate, in which case those assets become subject to the general rules governing com- munity property. Furthermore, irrespective of the applicable matrimonial property regime, spouses are free to enter into agreements between themselves, which are valid and enforceable under general civil law principles, provided that they comply with mandatory rules and public policy.
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