Making a Will in Mallorca: Choice of Law and Forced Heirship

If you die as a resident of Mallorca without a will that contains an express choice of law, your estate is not distributed under the law of your home country. Balearic inheritance law takes over instead, with its own forced heirship regime that works differently from what most foreigners expect. A will made on Mallorca is therefore not a formality for some day. It is the decision about which legal system your family will use to settle your estate in the end. This post covers the step that comes before any distribution: the choice of law, the Mallorcan forced share and the procedure at the notary.

Why Mallorcan law applies if you make no choice of law

The EU Succession Regulation 650/2012 applies to all successions from August 17, 2015. It replaced the old connection to nationality: what counts now is the law of the state in which the deceased had his or her last habitual residence. If you have lived on Mallorca for years, are registered here and your daily life happens here, that state is Spain. Your foreign passport changes nothing about that.

Spain, however, is not a single inheritance-law territory. Alongside the Spanish Codigo Civil there are regional civil laws, among them on the Balearic Islands. For Spaniards, the applicable one is determined by the vecindad civil, a kind of civil-law regional status that foreigners simply do not have. For that case, article 36 of the regulation steps in: the law of the territorial unit with which the deceased had the closest connection applies. For a foreign resident living in Palma or Arta, that leads to the Balearic Compilacio.

Practitioners do not consider this path entirely settled, and that is precisely the argument for making a will: with a choice of law, the question never even comes up.

The Mallorcan forced share compared with other systems

The Mallorcan forced share, in Spanish legitima, is the legally protected minimum share of close relatives in the estate. Under the Compilacio of Balearic civil law it amounts to one third of the estate for children if there are four or fewer, and half if there are more than four.

The key quotas for Mallorca and Menorca at a glance:

• Children and their descendants: one third of the estate with four or fewer children, half with more than four (article 42)
• Parents, if there are no children: one quarter of the estate, in equal parts (article 43)
• Spouse alongside children: usufruct over half of the estate, alongside parents over two thirds, otherwise usufruct over the entire estate (article 45)

The decisive difference to other systems lies not in the amounts but in the legal nature. Countries in the common law tradition, such as England or most US states, leave you broad freedom to distribute your estate as you wish. Germany protects close relatives through a compulsory portion under section 2303 of the Civil Code, but that is a pure monetary claim: the person entitled never becomes an heir and has no say over the finca. On Mallorca the legitima is different again. It is a share in the estate assets themselves and is in principle satisfied with items from the estate. The testator can, however, order in the will that it may be paid out in money, even if there is no cash in the estate at all (article 48).

Note that different articles and different quotas apply on Ibiza and Formentera. If you own property on a neighboring island, raise this with the notary.

Can I disinherit my children on Mallorca?

No, not completely. The forced share under article 42 of the Compilacio remains. Disinheritance is possible only on the grounds listed in the statute, and they are narrow. If you choose your national law instead, its own rules on disinheritance apply, and depending on the country they can be similarly strict or far more permissive.

How to fix the choice of law in your will

Article 22 of the EU Succession Regulation allows you to choose the law of the state whose nationality you hold. As a foreign resident on Mallorca you can therefore lock in the inheritance law of your home country. The choice must be declared expressly or result unambiguously from the will. A single clause is enough, but it has to be there.

A Spanish will covering the Spanish assets and a second will at home covering the rest is permissible, but error-prone: the two deeds must not revoke each other. Usually a single will that covers the entire estate and clearly states the choice of law makes more sense. Which variant fits is best settled with a lawyer on the island who knows both legal systems, see our guide to finding a lawyer on Mallorca.

Procedure at the notary, registry and costs

The standard case is the testamento abierto, the open will. You explain your last will to the notary, he puts it into legal wording, reads it out and notarizes it. The original stays in the notary's protocol. A notice then goes to the Registro General de Actos de Ultima Voluntad in Madrid, the central register of wills.

The register does not store the content, only when you made a will and before which notary. After the death, the survivors request the Certificado de Actos de Ultima Voluntad. It costs 3.86 EUR via form Modelo 790 with code 006 and can be requested at the earliest 15 working days after the date of death. Without this certificate, no acceptance of inheritance can take place at the notary.

Measured against what an inheritance dispute or an unnecessarily high inheritance tax bill costs, this is the cheapest part of the whole estate plan. How much tax actually falls due in the Balearics is worked through in our post on inheritance tax on Mallorca. What else needs to be dealt with after a death is covered in our overview of the bureaucracy after a death in Spain.

Do I need an NIE number for a Spanish will?

In practice, yes. The notary identifies you by passport and NIE, and without an NIE neither a property transfer nor a tax filing for the estate can be completed later. Apply for it before the notary appointment.

Is a handwritten will valid on Mallorca?

Yes, the testamento olografo is permitted, but it must be entirely handwritten, dated and signed. After the death, judicial authentication is required, which can take months. For everyday purposes the notary is the faster route.

Conclusion

Without a will, your place of residence decides your inheritance law, and on Mallorca that means the Balearic Compilacio with a forced share that gives children a stake in the estate assets and the spouse a usufruct. If you want the law of your home country instead, you must declare the choice expressly. The effort is modest: one notary appointment and usually under 70 EUR. If properties in two countries are involved or a blended family adds complexity, a conversation with a lawyer who knows both legal systems is worth it beforehand. The tax side, with the allowances that apply in the Balearics, is covered in our post on inheritance tax on Mallorca.