It is well over 2 years now, since the European Court of Justice's Ruling that the Spanish Tax Authority’s succession tax system conflicted with the European Union principles of freedom of movement of EU individuals and circulation of money within the EU.
That case was specifically in relation to the distinction the Spanish Tax Authority previously made between Spanish Residents and Non-Spanish Residents.
The Ruling was that (European) Non-Spanish Residents should be treated in the same way as Spanish residents, for the purposes of Spanish Succession Tax.
Following the Ruling, Spain (as required) revised its practice; and now, British owners (for example), of Spanish properties, are treated in the same way for Spanish Succession Tax purposes, irrespective of whether they are resident in Spain or not.
It is considered probable by most commentators, that the Spanish Succession Tax treatment of British owners of Spanish properties is likely to change again in the light of the Brexit Referendum decision.
In principle, (as regards British owners of Spanish properties who are not actually resident in Spain), the Spanish Tax Authority will no longer be obliged to comply with the EU principles which require equal treatment of EU citizens.
It remains to be seen exactly how the negotiation between the UK and Spain will be concluded as regards fiscal issues. But, it is considered probable that once the UK is outside the EU, (non-Spanish Resident) British owners of Spanish properties will lose this special EU benefit, and will again be subject to the much more onerous 'national' Spanish Succession Tax rules, as applied by the Central Spanish Tax Office.
This would strip from British (but non-Spanish Resident) owners of Spanish properties, the more ‘generous’ succession tax allowances/ exemptions which the autonomous communities within Spain otherwise currently offer. So, a meagre succession tax-free inheritance amount of just below 16,000 Euros per spouse/ descendent beneficiary is then allowed. Any inheritance received above that value is taxable.
Well advised British owners of Spanish properties (but who are not actually resident in Spain) should therefore review their Spanish Wills and Estate Planning arrangements, to be prepared for this anticipated consequence of Brexit.
The tax mitigation steps which are recommended to prepare for this anticipated consequence of Brexit, are in fact, intelligent estate planning steps to take, even if the outcome of Brexit in this context is less onerous than expected.
So, in other words, a Spanish Wills and Spanish Estate Planning review is recommended as a wise process to go through in the run-up to Brexit- whatever the outcome of negotiations between the UK/ the EU. It is quite possible that the Spanish tax exposure can be reduced- whatever the end result of Brexit.
This general commentary is not intended to be exhaustive; and case-specific legal advice should always be sought.
The Legal 4 Spain team provides a full Wills, Estate Planning and Probate service for properties and other assets anywhere in Spain. We are always happy to provide a competitive cost estimate in the first instance, on a no-obligation basis.