Waiving an inheritance in Spain when you live in Italy

If you have been called to an inheritance in Spain and you live in Italy, you can turn it down without crossing the Mediterranean. Spain's Civil Code requires the waiver to be made before a notary, in a public deed. The EU Succession Regulation adds a second route: make the declaration in Italy, before a notary or at the court, in the Italian form. What does not depend on where you sign is what happens to your share afterwards, and on that point Spain and Italy work differently.

First, which law governs the estate

Regulation (EU) 650/2012 decides which law applies to the whole succession. The general rule is the law of the country where the deceased had their habitual residence at death (Article 21). Someone with another nationality can choose the law of that country in a will (Article 22). Whichever law governs the succession also governs acceptance and waiver (Article 23(2)(e)).

An example: an Italian who lived in Málaga and never chose Italian law in a will leaves an estate governed by Spanish law, including the flat in Milan. If the will did choose Italian law, the Italian Civil Code governs even the flat in Málaga.

Spain also has several civil law systems side by side: Catalonia, Aragon, Navarre, the Basque Country, Galicia and the Balearic Islands have their own succession rules. This article covers the common Spanish Civil Code.

How a waiver works under the Spanish Civil Code

The rule is Article 1008: the waiver must be made ante Notario en instrumento público, before a notary in a public deed. A letter, an email or a private document will not do.

The other rules are few and strict:

• All or nothing. You cannot waive part of the estate, for a period, or under conditions (Article 990).
• No second thoughts. Once made, the waiver is irrevocable. It can only be challenged for a defect of consent or if an unknown will turns up (Article 997). In Italy, by contrast, someone who has renounced can still accept as long as no one else has accepted and the right has not lapsed (Article 525 of the Italian Civil Code).
• Effect from the date of death. The waiver reaches back to the day of death (Article 989): legally, you were never an heir.

The Spanish Code sets no general deadline to decide. But anyone with an interest, such as a creditor or a co-heir, can ask a notary to serve you a formal demand. From then on you have thirty calendar days to accept or waive, and if you stay silent the estate is treated as accepted outright (Article 1005). In Italy the right to accept lapses after ten years (Article 480 of the Italian Civil Code), but under Spanish law it is that notarial demand that counts: if it reaches you in Italy, the clock is already running.

Steps that count as accepting

Some waivers are acceptances in the eyes of the law. Article 1000 treats the estate as accepted when the heir sells, gives away or assigns their right, when they waive in favour of one or more specific co-heirs, even for free, and when they waive in exchange for a price.

In practice, "I renounce in favour of my sister" is not a waiver. It means accepting and then giving your share to your sister, with the civil and tax effects of both steps. Italian law says the same in Article 478 of its Civil Code.

Three ways to do it from Italy

1. Sign at a Spanish notary's office. If you are travelling to Spain anyway, this is the most direct route: the notary records your declaration in a deed and adds it to the estate file.

2. Give someone in Spain a power of attorney. You sign a special power of attorney before an Italian notary to waive that specific inheritance, and your attorney appears before the Spanish notary. The power usually needs a Hague apostille and, unless it is bilingual, a translation. Ask the Spanish notary beforehand which format they accept.

3. Waive in Italy. Article 13 of the Regulation lets heirs make the declaration before the authorities of the country where they live. In Italy the rinuncia all'eredità is received by a notary or by the court's cancelliere (clerk) and entered in the registro delle successioni (Article 519 of the Italian Civil Code). In judgment C-617/20 of 2 June 2022, the Court of Justice of the EU confirmed that such a declaration is formally valid if it meets the requirements of the country where it is made, without adding those of the law governing the succession. It takes effect in the estate once the authority handling it knows about it, so a copy has to reach the Spanish notary or court. In judgment C-57/24 of 27 March 2025, the same Court added that this forum exists to receive declarations, not to open separate proceedings.

Who takes your share: where Spain and Italy part ways

Many people waive an inheritance expecting their share to pass to their children. Under Italian law it does. Under Spanish law, as a rule, it does not.

Italy applies rappresentazione: descendants step into the place of someone who cannot or will not accept (Article 467 of the Italian Civil Code). If you waive, your children inherit in your place.

In Spain, Article 929 of the Civil Code says a living person cannot be represented, except in cases of disinheritance or incapacity. Whoever waives is alive, so their children do not step in for them. In an estate without a will, the share of the person who waives goes to the other co-heirs (Article 981). Only if all the relatives of the nearest degree waive do those of the next degree inherit, in their own right (Article 923). The reserved share works in a similar way: a waived portion of the legítima goes to the other forced heirs in their own right (Article 985).

An example under Spanish law with no will: a father leaves two children and one waives. That share goes to the brother, not to the waiving child's own children. The outcome changes if the will provides a sustitución vulgar, a substitute heir named to receive the share if the heir will not or cannot accept (Article 774).

The tax, even for someone who receives nothing

A pure, simple and free waiver costs the person waiving nothing in Spanish inheritance tax, the Impuesto sobre Sucesiones. Those who benefit pay, on the share they receive (Article 28.1 of Law 29/1987). One detail: if the person waiving was a more distant relative of the deceased than the beneficiary, the tax office applies the waiving person's relationship.

A waiver in favour of a named person is taxed twice: the person waiving pays inheritance tax, and the gift of that share is taxed on top (Article 28.2). A waiver made after the inheritance tax has become time-barred is treated, for tax purposes, as a gift (Article 28.3).

If debts are what holds you back

When the worry is that the estate carries more debts than assets, waiving is not the only option. You can accept a beneficio de inventario, with the benefit of inventory, again before a notary (Articles 1010 and 1011). You then answer for the debts only up to the value of the estate's assets, and your own assets stay separate from the deceased's (Article 1023). Article 1010 also lets you ask for the inventory before deciding, so you choose with the figures in front of you.

If you have any doubts, Riondato & Partners is here to help

For over 45 years, Riondato & Partners has worked with Italian and Spanish clients on matters that sit on both sides of the Mediterranean. If you have been called to an inheritance in Spain and live in Italy, get in touch: we will look with you at which law governs it, who receives your share if you waive, and the shortest route to signing.

Sources

• Spanish Civil Code, consolidated text (Articles 923 to 1023), BOE
• Law 29/1987 on Inheritance and Gift Tax, Article 28, BOE
• Regulation (EU) 650/2012 on succession, EUR-Lex
• CJEU judgment C-617/20: waiver before the authority of another Member State (Gómez-Acebo & Pombo, in Spanish)
• CJEU judgment C-57/24: where to accept or waive (Gómez-Acebo & Pombo, in Spanish)
• Italian Civil Code, Article 467 (rappresentazione), Brocardi