According to the latest statistical data, Spain now has around 49 million inhabitants, of which approximately 9,6 million were born abroad.
Within this group, The Francophone community is especially relevantOnly French citizens residing in Spain are among those 90.000 and 100.000 inhabitants So, if we add the rest of the nationals of countries with similar traditions (Belgians, Swiss or from the Canadian region of Quebec) we are talking about a group of several hundred thousand people whose matrimonial property regime may clash with Spanish inheritance law.
In many of these countries, a type of matrimonial property regime is very common, but it is little known in Spain: the universal community with full attribution to the surviving spouse (communauté universelle avec attribution intégrale au conjoint survivant), which may clash head-on with the system of legitimacy of the Civil Code.
This article attempts to answer that question with a case concrete and relying on the line marked by the Directorate General of Registries and Notaries (DGRN), Resolution of July 29, 2015.
What is the French universal community with full attribution
Under French law, spouses can agree on a marital property regime. universal community.
Its basic idea is simple to explain: All the assets of the spouses, present and future, form a single common pool.
There is no "yours" and "mine", but a global "ours", with few exceptions, and with nuances, it can be assimilated to the community property regime of common law.
This regime is usually supplemented with a clause that generates the most controversy when it clashes with Spanish law: the full allocation to the surviving spouseso that, upon the death of one of the spouses, The entirety of that community is attributed to the survivor.
In French logic, what the widower receives is not, technically, an inheritance, but a marital advantage derived from marriage: an effect of the economic regime of marriage itself.
When that married couple establishes their residence in Spain and the death occurs in this country, the scenario becomes more complicated since, unlike the previous situation, the Spanish Civil Code recognizes the children as having the status of forced heirs, with the right to a legitimate that cannot be emptied of content at the will of the causer.
Two distinct aspects: matrimonial property regime and inheritance
Given this apparent contradiction, it is fundamental Do not mix what belongs to the marriage and what belongs to the inheritance.
- On the one hand, we have the marital property regimeIn the case of both spouses being French nationals and who married in France, the law applicable to their matrimonial property regime will, in principle, be French law. This means that Spain must to recognize the existence and content of the universal community with full attribution.
- However, on the other hand, it is important to take into account the succession sphereSince the entry into force of Regulation (EU) 650 / 2012The law applicable to the inheritance is determined, in general, by the habitual residence of the deceased at the time of deathIf the deceased lived in Spain at the time of death, their succession is normally governed by the spanish law, unless he had expressly chosen French law in his will.
Spanish inheritance law, in turn, protects children through the legitimate: a minimum portion of the inheritance that they cannot be deprived of, except in exceptional circumstances.
Given this apparent contradiction between the two systems, the following question arises: When the French clause of full attribution means that the surviving spouse keeps all the community property, are we dealing with a matrimonial effect (which is respected, even if it empties the inheritance) or in the face of a kind of concealed mortis causa disposition that needs to be reviewed in light of Spanish law?
The Resolution of July 29, 2015
Although the case resolved by the Resolution of the DGRN of July 29, 2015 (BOE-A-2015-10466) It referred to Belgian spouses; the logic is fully applicable to the French universal community and all those analogous systems of a French-speaking nature.
In that case, a Belgian couple had agreed in their marriage contract to a pact of survival: upon the death of one of them, the other acquired the entirety, in full ownership, of the common goodseven when there are children.
That is, a mechanism functionally very similar to the full attribution in the French universal community.
Given this situation, The Spanish Property Registrar raises doubts about how to classify that agreement and about the proof of foreign law.
The matter reaches the General Directorate of Registries and Notarieswhich resolves in the following way:
- That survival pact, although it has a clear effect at the time of the death of one of the spouses, It is not a mortis causa disposition in the style of a will., but a agreement specific to the matrimonial property regime.
- As a consequence, the surviving spouse acquires the entire property It is not considered to be part of the inheritance of the deceased, but an effect of the matrimonial regime that must be respected.
Consequently, if foreign law establishes this attribution to the surviving spouse as part of the matrimonial regime, and it must be classified as such according to our rules of private international law, the widowed spouse acquires directly through marriage, and what he receives It is not part of the inheritance of the deceased.
Application to the specific case
Following the logic of the Resolution of July 29, 2015, the process for enforcing the existence of this survival clause would be as follows:
- Properly accredit the French or Belgian matrimonial property regimeThe marriage contract or agreement is provided, proving by means of a report or legal certificate that it is a universal community with full attribution to the surviving spouse and confirming that said regime was in force at the time of death.
- To classify this entire attribution as what it is in its system of origin: a marital advantage linked to the economic regimenot a testamentary disposition. From the perspective established by the DGRN, it would fall within the scope of matrimonial regimenot in the succession.
Consequently, in that first death There is nothing to divide among the childrensince the entire estate would pass, by virtue of the agreed matrimonial property regime, to the surviving spouse without being included in the inheritance.
The children's inheritance rights do not disappear, but will be projected later, when the surviving spouse dies and their own succession is opened, or with respect to other assets that have not been absorbed by the matrimonial regime.
Is it legal to empty an inheritance in this way in Spain?
It's a very reasonable, even intuitive, objection.
From the perspective of Spanish legal culture, this sounds like circumventing the legitimate share.
The key is to understand that, from a technical point of view, This is not a covert succession maneuver decided at the last minute.but rather a matrimonial property regime option adopted by mutual agreement of the spouses, in accordance with a foreign law that expressly recognizes it.
Spanish Private International Law is based on the following premise, supported by the relevant European Regulations: If a marriage is validly subject to a foreign economic regime, That regime is respected.unless it directly contradicts Spanish public policy. And the mere fact that it defers inheritance to the children for a second succession period is not, in itself, sufficient to consider it contrary to public policy.
Children will retain their inheritance rights when the second parent dies and may always, if necessary, challenge the marriage contract if there are serious defects (fraud, simulation, incapacity, etc.).
But what they cannot do, in light of the DGRN doctrine, is to simply ignore the foreign matrimonial regime and claim the statutory share as if it did not exist.
What should someone in such a situation keep in mind?
For a widowed spouse subject to a matrimonial property regime such as the one described, the practical conclusion is clear: with a universal community with full attribution properly documented and proven before a notary and Registry in Spain, it is perfectly defensible to register 100% of the Spanish assets in their name, without the children receiving anything on that property in the first death.
For children in the same situation, the important idea is different: their parents' marital property regime may temporarily exclude certain assets from the deceased's inheritance, but that This does not mean they lose their status as forced heirs.
Their rights will primarily shift upon the death of the surviving parent.
RRYP Global, Lawyers specializing in inheritance and international succession law in Spain.
