The application of "Derecho civil común" or "especial o foral" to foreigners, particularly in matters of succession

Abstract

The fact that Spain is a territorially based multi–legislative State explains the existence within its legal order of an interregional system designed to resolve conflicts of laws that may arise from the potential applicability of more than one Spanish law to an internal private relationship. For the purpose of determining the law applicable to a succession mortis causa, Spanish law relies on the connecting factor of "vecindad civil", a status that is exclusive to Spanish nationals. However, this connection—while not without difficulties—proves effective in fulfilling its assigned function only in domestic situations, since it becomes inapplicable when, exceptionally, in a case involving an external element, Spanish law is designated as applicable to the succession of a foreign national as a result of a first–degree renvoi. In such cases, the prevailing scholarly opinion has advocated, by analogy, recourse to the law of the deceased's last habitual residence, a solution that has now been endorsed by the Supreme Court in its judgment of 19 May 2025. This ruling, which deserves commendation, also has the merit of offering robust guidance as to the conditions that future decisions developing this line of case law should satisfy in order to address situations not covered either by the existing autonomous conflict–of–laws rules or by the Supreme Court's recent position. Nevertheless, the most far–reaching lesson that may perhaps be drawn from the Supreme Court's decision is the need to project its reasoning onto cases governed by Regulation 650/2012 in which the conflict–of–laws rules of that instrument refer to the Spanish multi–legislative legal order, so as—by extending to its utmost limit the interpretation offered by our Supreme Court—to take sides in the debate concerning the correct application of Article 36 of the European instrument.