Enrique lived in Madrid for forty years. When he retired he sold the flat in Chamberí and on 1 October 2023 moved to an apartment in Málaga, near his daughter. He died on 14 February 2026. His daughter takes it for granted that the inheritance is settled in Andalucía, "because Dad was registered on the municipal roll here". His son, who lives in Dublin, has read that non-resident means the State tax office. Both are partly right and both are wrong about something.
The rule: where the deceased spent the most days in the last five years
The Spanish inheritance and gift tax (Impuesto sobre Sucesiones y Donaciones, or ISD) is ceded to the autonomous communities, Spain's regions, and Law 22/2009 sets the connecting factor. Its article 32.2.a) says that the yield of an inheritance belongs to the community where the deceased had their habitual residence on the date the tax accrued. And article 28.1.1.º.b) defines that residence in a very specific way: the community in which the deceased stayed for the greatest number of days in the period of the five years immediately before, counted from date to date and ending on the day before the death.
It is not the municipal roll, nor the last address, nor the place of death. It is a count of days within a five-year window. Temporary absences count towards the community of residence, and the law presumes, unless proven otherwise, that a person stays where they have their habitual home.
If the length of stay cannot be determined, the test moves to the main centre of interests (where the greater part of the income tax base is obtained) and, as a last resort, to the last residence declared in the income tax return (IRPF).
Enrique's count, step by step
- Counting window: from 14 February 2021 to 13 February 2026. That is 1,826 days.
- Days with his habitual home in Málaga: from 1 October 2023 to 13 February 2026, some 867 days.
- Days with his habitual home in Madrid: the rest, some 959 days.
- Result: Madrid adds up to more days. Enrique's inheritance belongs to the Comunidad de Madrid, even though he had been living in Málaga for more than two years.
Had Enrique died a year later, the result would have been the opposite. That is why moving residence is not a quick tool for choosing which rules apply: the five-year window means the effect takes time to arrive. We explain it in more detail in the comparison of reductions and reliefs by region.
When the deceased or the heir does not live in Spain
This is where the part the son in Dublin had read comes in. Article 32.2 of Law 22/2009 only shares out among the communities the tax of taxpayers resident in Spain. When the heir does not live here, or when the deceased did not, the tax is not ceded and it is managed by the State tax agency (the Agencia Tributaria), in practice through the Oficina Nacional de Gestión Tributaria, its national management office, and with Modelo 650, the inheritance tax return form.
But the fact that the State manages the tax does not mean that State rules apply. The second additional provision of Law 29/1987, drafted to comply with the judgment of the Court of Justice of the European Union of 3 September 2014 (case C-127/12) and later amended by Law 11/2021, recognises the right to apply the regional rules in these cases:
| Situation | Who manages | Which rules may apply |
|---|---|---|
| Deceased resident in a community, heir resident | That community | Those of the deceased's community |
| Deceased resident in a community, heir non-resident | State | Those of the community where the deceased lived (AP 2.1.b) |
| Deceased non-resident, assets in Spain | State | Those of the community where the greatest value of the assets located in Spain lies (AP 2.1.a) |
| Deceased non-resident, no assets in Spain | State | Those of the community where each heir lives (AP 2.1.a) |
AP stands for the second additional provision of Law 29/1987.
In Enrique's case, the daughter, resident in Málaga, files with the Comunidad de Madrid. The son, resident in Ireland, files Modelo 650 with the State tax agency, but he is entitled to apply the Madrid rules because Enrique lived in Madrid according to the five-year count. Same deceased, two administrations, a single set of regional rules.
If the daughter files in Andalucía because her father was on the municipal roll there, Madrid can claim the tax as unfiled, with the corresponding surcharge or penalty, and the refund of what was paid in Andalucía is dealt with separately. Before paying anything, document the count of days: tenancy agreements or title deeds, municipal registrations, health card, utility bills, income tax returns.
How the deceased's residence is proved
In practice, the burden of proving where a deceased person lived falls on whoever files. The documents that work best are those that show daily life and not just an address:
- electricity and water consumption at both homes during the years counted;
- the assigned health centre and prescriptions dispensed;
- the tax address on the income tax returns for those years;
- card transactions in each city;
- the date of registration on the municipal roll and of removal from the previous one.
When the deceased spent seasons in two places (winters on the coast and the rest of the year in the capital, for example), the presumption of the habitual home and the way temporary absences are counted can lead to a different conclusion from the intuitive one. It is worth doing the count month by month before deciding.
If you would like us to review the count in your case, the inheritance form asks for exactly the details we need: dates of changes of address, where the assets are and where each heir lives.
Foral territories and assets spread around
The Basque Country and Navarre have their own inheritance tax, with rules under their economic agreements with the State that are not those of Law 22/2009. If the deceased lived there, or if there are assets in those territories, the analysis is different and has to start from those rules.
It is also common for an estate to include property in several communities. For a resident deceased, that does not change which community is competent: the one where they lived applies to the whole estate, wherever the assets are. The location of the property only matters when the deceased was not resident, because then the second additional provision looks at where the greatest value lies.
Example: a deceased resident in France leaves a flat in Valencia worth 180,000 € and another in Granada worth 240,000 €. The tax is managed by the State and the rules that may apply are those of Andalucía, because the greatest value of the assets located in Spain is in Granada. If the Valencia flat were worth more, it would be the Valencian rules. Each heir files their own Modelo 650 for what they acquire.
What happens with the other taxes
The community for inheritance tax does not decide the one for other taxes. The municipal plusvalía is managed by the town hall where each property is located. Income tax for the year of death is filed according to the deceased's residence in that year. And if an heir lives abroad and keeps the property, their later obligations under the non-resident income tax have nothing to do with the community that assessed the inheritance.
To see every combination of the deceased's and the heir's residence, the guide with the table of ISD competences sets them out in a single table. And if the problem is that an heir lives outside Europe, the answer on heirs living outside the European Union goes through the particular features of that case.
Enrique did not choose his community; his last five years chose it. His children only had to count them properly.
At Salama Tax this count is the first step in any inheritance involving changes of residence, within or outside Spain, before any form is prepared.