In Spanish law when two people are living together as Common Law Couples in Spain, in the case of death of one of the partners the surviving cohabiting partner of the deceased party has no recognised rights in intestate succession, (inheritance Tax in Spain without a will), unlike the surviving spouse of a marriage.
For married couples there are legal regulations already in place for the division of the assets specified in the Civil Code. As these regulations do not take in to account Common Law Couples it is important to make a will to ensure that your assets are distributed according to the wishes of each partner. Even though in some Autonomous Communities, some couples enjoy some rights «mortis causa» the making of a will avoids any misunderstanding regarding the distribution of assets of a deceased partner.
In Andalusia, the «Law 5/ 2002 of 16 December, Common Law Couples», where the union of two people regardless of their sexual orientation, who coexist stably in a relationship equivalent to wedded affection are recognized as Domestic Partners. For the purposes of compliance to this Act, at least one partner must have their habitual residence in a municipality in Andalusia. This Act however, exempts any partners of:
- Emancipated minors.
- Anyone connected by marriage or by a registered domestic partnership to another person.
- Direct blood relatives by birth or adoption.
- Relatives that have consanguinity in the second degree.
Cohabiting heterosexuals or homosexuals can register in the Register of Partners, (Registro de Parejas de Hecho), in the local Town Hall. In order to register documental proof of following should be presented at the time of application: – Personal identification, proof of single or marital status, and proof of habitual residence in a municipality in Andalusia together with a signed statement of intent to form a couple.
Once registered, Domestic Partners will be entitled to all of the rights accorded to married couples at municipal and at regional levels within the Andalusia province. However, in common law in Andalucía, Domestic Couples do not actually have any hereditary rights so it is important to make a will.
Under Spanish law, married couples and unmarried couples cannot be considered similar. Intestate married couples may inherit from spouses, whereas unmarried couples, without a will, have no right to inherit, this obviously leads to complications for the surviving partners in this type of relationship.
The most common example is a couple who has lived a together all their adult lives without marrying, and although one of them may have purchased the property, the other would be involved in the maintenance and upkeep of the property, or may have worked at home … In this situation, the surviving person has no means to claim their legal rights to any assets in the name of the cohabiting partner, and are considered to be in a weak position legally.
As we mentioned previously an economical viable solution would be to make a will now, (only 150 euro all inclusive). A will would clarify which assets the surviving partner inherits, and should include any clauses necessary to protect the partner’s interests. This way the surviving partner is not left to resolve all of the problems, without legal rights or protection.
Other possible options to resolve this dilemma are to specify the above points when registering as a Domestic Couple, or to pledge any assets in front of a Public Notary. Also it is vital to establish co- ownership when purchasing a property.
The rights of a Domestic Couples compared to those of Married Couples can vary to a greater or lesser extent in other regions such as the Basque Country, Catalonia, Navarra and the Balearic Community.