Technical article
If I Leave My Children a Trust but Live in Spain, Can a Spanish Court Cut into It?
Spain does not recognise Anglo-American trusts and has not ratified the Hague Trusts Convention.
Picture a retired widower from England who has lived in Spain for years. He has two children. He set up a trust under English law and chose English law for his estate. He wants to know whether a Spanish court could reach into the trust after he dies, and take a share for the children whatever the trust says.
The sources give no one-line answer. They show three rules that meet in his case, and one court decision that shows what can happen.
Rule one: Spain and trusts
Spain does not recognise Anglo-American trusts and has not ratified the Hague Trusts Convention. A law firm points to Supreme Court judgment 338/2008 of 30 April as confirming that. Chambers (tier B) adds that holding assets through a trustee meets problems with property registration in Spain.
Spain also looks through a trust for tax. Putting assets in is generally not a taxable step, since the assets are treated as the settlor's. When the settlor dies, resident beneficiaries may be treated as inheriting, and a discretionary trust does not push the inheritance tax point back to the day of each payment. A second source (tier C) says an irrevocable trust with a named beneficiary can be treated as a direct gift when it is created.
Rule two: the share kept for children
Spanish law keeps two-thirds of the estate for descendants. One third is strict, and one third can be betterment, which means it can go more to one child than another. A spouse receives a right of use over part of the estate. The regions differ.
| Region | Share kept for descendants |
|---|---|
| Spain in general | 2/3 |
| Catalonia and Galicia | 1/4 |
| Basque Country | 1/3 |
| Aragon | 1/2, held together for the children as a group |
| Balearic Islands | 1/3 or 1/2, depending on the island |
| Navarra | Largely a matter of form |
Rule three: which country's law applies
Under European Union Regulation 650/2012, the law of the last habitual residence governs the whole estate. A person can instead choose the law of the country whose nationality they hold. The widower in our example could choose English law. The UK is not bound by the Regulation, but the choice of English law is open to him as a British national who lives in Spain.
Article 23 of the Regulation adds that the applicable law decides whether lifetime gifts are pulled back when shares are worked out. So whether a gift into a trust is added back depends on the law chosen or the default law. The recital to Article 22 explains the nationality limit: it stops a choice that defeats people entitled to a reserved share.
One decision from Germany
Chambers (tier B) summarises a German Federal Court of Justice case. The deceased had validly chosen English law. A German court still applied the German compulsory-portion rules, on the ground of public policy. The summary does not set out the full judgment. It does show that a chosen law may not end the discussion where the forum has strong rules for children.
You could
You could write down which share your children would hold in your region of Spain. You could ask a Spanish lawyer whether the trust, the will and the law you chose point the same way. You could also talk with your children about how a reserved share would sit beside the trust, before anyone has to ask.
Who it touches
Children carry the share. A spouse may hold a right of use. A trustee outside Spain meets a registry that does not know the trust.
Have you or a friend moved to Spain with a trust in the family? What did the family find? Share it here, because someone may be weighing the same move.
Figures are estimates for planning, based on public data. Date read: October 2026.
Sources
- Chambers Succession and Estate Planning 2026 on Spain and Germany (B)
- EUR-Lex, Regulation 650/2012 (A)
- e-Justice portal (A)
- Spanish law-firm summary of Supreme Court judgment 338/2008 (B)
- adviser article on Spanish trust tax (C)
Tell us in the comments