Is Your Berliner Testament Valid in Spain? A Guide for German Expats

In brief: If you and your spouse signed a Berliner Testament in Germany and later moved to Spain, your joint will does not automatically work the way you intended. Spanish succession law does not recognise joint wills, and under EU Regulation 650/2012 Spanish law may govern your entire estate by default. The good news: with a law election (Rechtswahl), a coordinated Spanish will, and a well-organised estate file, your plan can survive the move intact.

You Signed It in Hamburg. You Now Live in Mallorca. Does It Still Work?

Picture a common situation. Klaus and Renate, both German nationals, signed a Berliner Testament with their Notar in Hamburg fifteen years ago. Like most German couples, they chose the classic structure: each spouse names the other as sole heir (Alleinerbe), and their two children inherit everything after the second death (Schlusserben).

Then life happened. Klaus retired, they sold the house in Hamburg, bought an apartment in Palma de Mallorca, and registered as residents in Spain. The Berliner Testament stayed in a drawer — job done, they assumed.

It is one of the most common assumptions among the roughly 180,000 registered German residents in Spain, and one of the most dangerous. The Berliner Testament is a distinctly German instrument, built on §§ 2265–2273 of the German Civil Code (BGB). Spain's Civil Code takes the opposite position: Articles 669 and 733 of the Código Civil prohibit joint wills (testamento mancomunado) under Spain's common civil law. Two legal systems, two opposite answers — and you now live under the second one.

This does not mean your Berliner Testament is worthless in Spain. It means its fate depends on rules most couples have never heard of: EU Regulation 650/2012, the concept of habitual residence, and the binding effect (Bindungswirkung) that makes the Berliner Testament both powerful and rigid.

What the Law Actually Says: EU Regulation 650/2012 and Your Joint Will

The starting point for any cross-border succession question in Europe is EU Regulation 650/2012, in application since 17 August 2015. Three of its rules matter enormously for a German couple with a Berliner Testament living in Spain.

1. The default rule: habitual residence decides. Under Article 21, your succession is governed by the law of the country where you were habitually resident at death. For Klaus and Renate, that is Spanish law — not German law — unless they act.

2. Your Berliner Testament is not automatically void. Articles 24 and 25 of the Regulation protect dispositions of property upon death that were valid under the law that would have applied when they were made. A Berliner Testament signed by two Germans habitually resident in Germany was made under German law, so its admissibility and substantive validity are generally preserved. Spanish authorities will not simply tear it up.

3. Recognised is not the same as effective. Even where the document itself is admissible, the succession — who is protected, what shares are reserved, how the estate is administered — follows the applicable law. If that is Spanish law, your children's legítima (Spain's forced heirship, typically two-thirds of the estate reserved for children) collides head-on with a will that leaves everything to your spouse first. A structure that is routine in Germany can become a source of litigation in Spain.

There is a further practical layer. Spanish notarios and the property registry (Registro de la Propiedad) work daily with Spanish notarial wills. Presenting a German joint will, with a certified translation, an apostille, and a European Certificate of Succession (Europäisches Nachlasszeugnis), is possible — but it is slower, more expensive, and more error-prone at precisely the moment your spouse is grieving.

The fix the Regulation itself offers is Article 22: the Rechtswahl. As German nationals, Klaus and Renate can each elect German law to govern their entire succession. That single clause — ideally recorded in a Spanish notarial will — realigns the legal framework with the Berliner Testament they already have. For a broader view of this election, see our complete guide to estate planning for German expats in Spain.

The binding effect: the trap inside the instrument

The Berliner Testament's defining feature is its Bindungswirkung. After the first spouse dies, the mutual dispositions (wechselbezügliche Verfügungen) become binding: the survivor generally cannot rewrite the plan and disinherit the Schlusserben.

In a purely German life, that rigidity is the point. In a cross-border life, it can become a trap. Suppose Klaus dies first and Renate, now widowed in Palma, wants to adapt the plan — sell the apartment, help one child buy a home, or remarry. Every step must be checked against the binding effect of a document signed fifteen years earlier in another country. Clauses German couples routinely add — the remarriage clause (Wiederverheiratungsklausel) or the Pflichtteil penalty clause (Pflichtteilsstrafklausel) — must now be interpreted and enforced through Spanish procedures.

And the tax layer is independent of all of this. Spain applies its inheritance and gift tax (ISD) according to its own rules regardless of which succession law governs. The Berliner Testament's "everything to the spouse first, children later" structure means the same assets can be taxed twice in Spain — once when the survivor inherits, once when the children do — and, on the German side, the children's generous €400,000-per-parent Erbschaftsteuer allowances are wasted at the first death. Germany and Spain have no bilateral inheritance tax treaty; relief exists only through unilateral credit mechanisms (§ 21 ErbStG in Germany, Article 23 LISD in Spain), which require careful filing in both countries.

The Classic Mistakes German Couples Make

Assuming the German document "just works" in Spain. It is admissible, but without a Rechtswahl it operates inside Spanish succession law — legítima included.

Confusing validity with practicality. Even a fully valid Berliner Testament forces your widow or widower through translations, apostilles, and a European Certificate of Succession before a Spanish notario will transfer the Palma apartment. Weeks become months.

Forgetting the will exists. Many couples signed their joint will decades ago. The survivor — or worse, the children — may not know where the original is deposited, whether it was registered in the German central register of wills (Zentrales Testamentsregister), or what it says.

Ignoring the tax asymmetry. Structuring the estate exclusively around German tax logic (spouse first, children later) can be significantly more expensive once Spanish ISD applies at both deaths.

Signing a new Spanish will that accidentally revokes the Berliner Testament. A Spanish will drafted without sight of the German joint will can conflict with binding mutual dispositions — or purport to revoke what German law says cannot be unilaterally revoked. The two documents must be drafted to coexist.

Doing nothing after the first death. The survivor often has a narrow set of options (including, under German law, renouncing the inheritance to unlock flexibility). Those options expire quickly.

How Sucesio Complements Your Berliner Testament

Sucesio does not replace your Berliner Testament, your Spanish will, or your Notar — and it never should. What it does is solve the problem that legal documents alone cannot: making sure the right people can find and act on your plan when it matters.

For a German couple in Spain, that means a secure digital vault where you can organise:

• The documents themselves: scans of the Berliner Testament, the Spanish notarial will with its Rechtswahl clause, the Zentrales Testamentsregister confirmation, the Registro de Últimas Voluntades details, NIE numbers, and the escritura of your Spanish property.
• The map of your estate: a structured inventory of assets in both countries — German bank accounts, Lebensversicherung policies, Riester contracts, the Spanish apartment, Spanish accounts — so your survivor and your children are not reconstructing your life from paperwork.
• Access hints for digital assets: online banking, brokerage and crypto access hints (never the keys themselves), stored securely and released only through Sucesio's verified transmission process.
• Personal messages: the explanation why you structured things this way — often the difference between a family that understands the plan and a family that contests it.

Your Berliner Testament decides who inherits. Sucesio makes sure your family knows it exists, where it is, what it covers, and what to do first — in a moment when they will be navigating two countries, two languages, and two bureaucracies at once.

What to Do Now: A Step-by-Step Plan

1. Locate the original. Confirm where your Berliner Testament is deposited and whether it is registered in the German Zentrales Testamentsregister.
2. Have it reviewed through a cross-border lens. A German Notar or lawyer working with a Spanish notario should assess how the joint will interacts with Spanish law, your habitual residence, and your assets in each country.
3. Decide on the Rechtswahl. For most German couples who want their Berliner Testament to operate as designed, an express election of German law under Article 22 of EU Regulation 650/2012 is the cornerstone. It must be made in the form of a disposition of property upon death — your notario can record it.
4. Make a coordinated Spanish will. A Spanish notarial will (testamento notarial abierto) that contains the Rechtswahl and is expressly drafted not to conflict with the Berliner Testament dramatically simplifies matters for your survivor. Our guide on how to make a will in Spain as a foreigner walks through the process.
5. Model the tax in both countries. Ask a cross-border tax adviser to compare the Berliner Testament structure against alternatives under Spanish ISD (including your region's allowances) and German Erbschaftsteuer, remembering there is no inheritance tax treaty between the two countries.
6. Organise the estate file. Centralise documents, asset inventory, contacts (Notar, notario, gestor) and instructions in one secure place your spouse and children can access when the time comes — this is exactly what Sucesio was built for.
7. Review after every life event. A move, a sale, a birth, a death, or a change in Spanish regional tax rules should trigger a review — and remember that after the first death, the survivor's options narrow fast.

FAQ

Q: Is a Berliner Testament legally valid in Spain? A: Generally yes, as to its validity: EU Regulation 650/2012 (Articles 24–25) preserves dispositions that were valid under the law applicable when they were made. But without an election of German law, Spanish succession law — including forced heirship (legítima) — may still govern your estate, which can override the way your joint will was meant to operate.

Q: Do we need a Spanish will if we already have a Berliner Testament? A: It is strongly recommended. A Spanish notarial will containing your Rechtswahl clause, drafted to coexist with the Berliner Testament, spares your survivor months of translations, apostilles, and recognition procedures before Spanish banks and the property registry.

Q: Can the surviving spouse change a Berliner Testament after moving to Spain? A: Usually not unilaterally. The mutual dispositions become binding on the first death (Bindungswirkung), wherever the survivor lives. Limited exits exist under German law — such as renouncing the inheritance — but they are time-sensitive and need professional advice.

Q: Does the Berliner Testament save inheritance tax in Spain? A: Often the opposite. Spain taxes each transfer, so "spouse first, children second" can mean the same assets are taxed twice under Spanish ISD, while the children's German tax allowances at the first death go unused. Germany and Spain have no inheritance tax treaty, so plan with a cross-border tax adviser.

Q: Where should we keep our Berliner Testament and Spanish will so our children can find them? A: Keep the originals with your Notar/notario and registered (Zentrales Testamentsregister in Germany; Spanish wills are automatically recorded in the Registro de Últimas Voluntades). Then store copies, registration details, and clear instructions in a secure digital vault like Sucesio, so your family knows exactly what exists and whom to contact.

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This article is provided for informational purposes only and does not constitute legal or tax advice. For any succession decision, consult a qualified notary or lawyer in your country of residence.