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V0850-16 4 March 2016 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · régimen de separación de bienes

Redistribution of assets upon death under the separation of property regime subject to IHT and Stamp Duty

Residents in Spain under a separation of property regime have queried whether the settlement of assets following the death of a spouse, arranged to simulate a community of property, qualifies for an exemption. The DGT has ruled that assets acquired by the survivor are subject to Inheritance and Gift Tax, and that the prior redistribution constitutes a barter subject to Stamp Duty (ITPAJD).

The question raised

Taxation of the surviving spouse upon the adjudication of half of the assets when the other spouse passes away.

The DGT's ruling

As a regime of separation of assets exists, the assets are separate property and there is no community of property to dissolve. The acquisition of the deceased's assets is taxed under Inheritance and Gift Tax by personal obligation. If a redistribution of assets is carried out to simulate a community, a barter occurs which is taxed under ITPAJD, without the exemption for the dissolution of community property being applicable due to the prohibition of analogy.

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