1 Under the law of this Member State, do special rules impose, for economic, family or social considerations, restrictions concerning or affecting the succession in respect of immoveable property, certain enterprises or other special categories of assets located in this Member State?
(a) In order to keep property in the same branch of the family when it is inherited by an ascendant and comes from their descendants where they had acquired it from another ascendant or a sibling, the law stipulates that this property must be reserved for relatives of the same line (Article 811 of the Spanish Civil Code [Código Civil]). Ascendants inherit before any other party any property gifted to their children or descendants who died without issue (Article 812 of the Civil Code). The widowed spouse must reserve any property inherited from their deceased spouse if they remarry or have another child (Article 968 of the Civil Code).
(b) A testator who wishes, for the purposes of the preservation of the undertaking or in the interests of their family, either to preserve a business in undivided shares or to retain control of a corporation or group thereof may avail themself of the option provided for in this Article by stipulating that their reserved share is to be paid in cash to the other persons concerned. For this purpose, it is not necessary for there to be sufficient cash in the estate for payment, and it is possible to make the payment with out-of-inheritance cash and for the testator or the partitioner appointed by the testator to make arrangements for deferral, provided that the deferral does not exceed five years from the testator’s death; any other means of extinguishing obligations may also apply. If the method of payment has not been established, any entitled person may claim their reserved share of the estate. Article 843 and the first paragraph of Article 844 will not apply to the division thus effected. (Article 1056(2) of the Civil Code).
(c) The right to family property [derecho de troncalidad] in certain areas of the province of Vizcaya provides that the transfer by inheritance of property classified as family property to outsiders or relatives who do not belong to the preferred line is valid, but the testamentary clause may be annulled at the request of the family members in the preferred line within four years from the date on which the entitled relatives became aware of the disposition, and in any event from the date of its entry in the land register (Article 69 of Law 5/2015 of 25 June 2015 of the Basque Civil Law [Derecho Civil Vasco]).
(d) In Navarre, Law 273 of the Navarre Civil Law Code (Compilación de Derecho Foral de Navarra) provides that the parent who entered into a marriage or a stable partnership with another person is obliged to reserve and leave to the children of the previous partnership, or their descendants, the ownership of all property received from their former spouse or stable partner, their children or the descendants of such children by any lucrative title. That obligation will continue to exist for as long as there are reserved descendants, even if, at the time of death, the reserver has ceased to be married or to live in a stable partnership. If one parent releases the other from the obligation to reserve property in a scenario where the latter enters into a new marriage or a stable partnership with another person, this exemption will be null and void, as will any dispositions of the parent entering into a new marriage or a new stable partnership if they otherwise contravene the provisions of this Law. Laws 305 to 307 also provide for the succession of family property.
(e) In Aragon, Articles 373 to 376 of the Aragon Regional Law Code regulate the ‘consorcio foral’ (a form of joint ownership), which is formed when several siblings or children of siblings acquire assets by succession from a common ascendant. During its period of validity, the right to dispose of the joint property and the joint shares of the members of the consorcio is subject to the limitations laid down in that legislation, in particular as regards the transfer to persons outside the family circle, in order to preserve the continuity of the assets in the family.
(f) The articles of association of a corporation may restrict the transferability of shares by reason of death. In this case, in order to refuse registration of the transfer in the register of registered shares, the company must submit to the heir an acquirer of the shares or offer to acquire the shares itself at their fair value at the time when registration was requested, in accordance with the provisions for the derivative acquisition of own shares in Article 146. ‘Fair value’ means the value determined by an independent expert, other than the auditor of the company, appointed for that purpose by the directors of the company at the request of any interested party. (Article 124 of the Law on corporations, Royal Legislative Decree 1/2010 of 10 July 2010).
(g) For economic reasons, Articles 23 et seq. of Law 19/1995 of 4 July 1995 on the modernisation of agricultural holdings impose minimum cultivation units affecting succession, since Article 24(3) provides that the division of the estate is considered null and void where it results in parcels of land of less than the minimum cultivation unit, even when this is contrary to the provisions made by the testator by applying the rules contained in the Civil Code on items indivisible by nature or by law and on the assignment of such items in the absence of an express wish of the testator or an agreement between the heirs, with the exception of the exceptions provided for in Article 25.
(h) For social reasons, State and Autonomous Community legislation on protected housing lays down limitations on the transfer and use of such dwellings, such as the imposition of maximum prices, pre-emptive and retroactive rights of first refusal in favour of the administration and the imposition of certain requirements on purchasers, which may affect the disposal of such dwellings by heirs.
(i) The legislation on rural and urban leases permits specified successors of the tenant to acquire the lease rights by subrogation (Article 24 of Law 49/2003 on rural leases, Articles 16 and 33 of Law 29/1994 on urban leases).
(j) The acquisition by foreigners of ownership or other rights in rem over immovable property located in areas declared to be subject to restricted access for reasons of national defence is subject to administrative authorisation under the terms laid down in Law 8/1975 of 12 March 1975 and its implementing legislation, which may condition the acquisition by inheritance of such property.
2 Under the law of this Member State, do these special rules apply to the succession in respect of the above-mentioned assets irrespective of the law applicable to the succession?
Paragraphs (b), (g) and (h), (i) and (j) apply to property located in Spain irrespective of the law governing succession; paragraph (f) applies if the company is governed by Spanish law.
3 Under the law of this Member State, do special procedures exist to ensure compliance with the above-mentioned special rules?
The notary documenting the transfer and the property registrar in charge of registering it check whether a transfer is lawful. A court order may of course also be requested.