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The Sixth Section of Private International Law

The Sixth Section of Private International Law of the Royal Academy of Jurisprudence and Legislation of Spain is organising an online session on 08 March 2023 at 19.00 hours and coordinated by the Honourable Ana Fernández-Tresguerres, Academic...

International notifications through consular channels

The service of civil and commercial documents through diplomatic or consular channels is provided for in both the 1965 Hague Service Convention and Regulation (EU) 2020/1784 on the same subject, which applies to the service of civil and commercial documents...

Recognition in Spain of constructive trusts for the disabled
Oct 28, 2021

Article five of Law 8/2021, of 2 June, modifies Law 41/2003, of 18 November. This law creates the protected heritage of persons with disabilities. In general, the 2003 law coincides with the approach taken 18 years later by Law 8/2021, incorporating Art. 12 of the New York Convention. Two modifications can be highlighted: the participation of the disabled person in its constitution, limited, or always in subsequent contributions -which in many cases will lead to the appointment of a judicial defender- and greater visibility of the foral or autonomous civil institutions, settling previous fiscal controversies.

Thus, in addition to the state regulations, the regulations of Aragon and Catalonia should be mentioned. In Aragon, Article 7 of Legislative Decree 1/2011, of 22 March, of the Government of Aragon, which approves, under the title of "Code of Foral Law of Aragon", the revised text of the Aragonese Civil Laws, is applicable. For Catalonia, the regulations are made up of Articles 227-1 to 227-9 of the Catalan Civil Code according to the wording given by Law 25/2010, of 29 July (modified by Article 9 of Law 6/2015, of 13 May), approving the Second Book of the Civil Code. They make up Chapter VII under the heading "Asset protection of the disabled or dependent person". Both pending adaptation to the Convention.

Art. 9.6 of the Civil Code, in the wording given to it by Law 26/2015, inspired by the Hague Convention of 2000, on the international protection of adults, -to which Spain, to date, has not adhered-, assumes that the law applicable to support measures for persons with disabilities will be that of their habitual residence..., without prejudice to the recognition in Spain of support measures agreed in other States. And being always applicable, however, the Spanish law for the adoption of provisional or urgent support measures.

Therefore, in Spain, the measures consisting of the legal institutions of the jurisdiction in which the person with a disability resides must be recognised and, where appropriate, the constructive trusts ordered for his or her protection must be recognised.

In itself, the trust is a way of conceiving property law that is very different from continental law and has a projection to all areas of law - financing agents, pension funds, protection of the incapacitated, matrimonial property regime or inheritance mortis causa, among others.

It establishes a characteristic split between legal ownership attributed to the trustee and equitable ownership, which corresponds to the beneficial owner. It supposes a separate estate, far removed from the concept of legal personality, insofar as its legal relations are not directly assumed by the trust established by founding document by its settlor, who assigns it to the trustee or trustees, so that they can administer it according to the instructions received by the settlor - who can establish freedom of criteria - with the result of favouring the beneficiaries of the estate, the beneficial owners.

(Vid. Fernández Tresguerres, A. "Once again on the recognition of the Trust", 14.5.2014:,

Our country is not a party, nor is it expected to be, to the Convention of 1 July 1985 on the Law Applicable to Trusts and their Recognition. However, Article 1.2 of Regulation (EU) No 650/2012 of 4 July 2012 excludes the operation of trusts, except for those constituted mortis causa, and Member States are therefore obliged to recognise them.

Among the most frequent types of constructive trusts are the so-called constructive trusts, which are increasingly used for the protection of persons, in the family and inheritance spheres. The use of constructive trusts is different in that they are generally ordered by the judicial authority and not by the settlor, and although this is not their characteristic field - linked to a claim for reparation - they have been advancing for years in the field of Family Law, for the protection of vulnerable family members, also mortis causa in Anglo-Saxon jurisdictions, including the British one.

Thus it is highlighted in the legal literature (Sawyer, Wons) that court decisions use equity in relation to family property, using developments in the concept of parental responsibility for children in the context of social and economic changes.

Despite the fact that Spain is not a party to the Hague Convention, Spanish legislation undoubtedly recognises the participation of trusts in the traffic in Spain, which is, moreover, frequent in notarial activity. The publication of Royal Decree 304/2014, of 5 May, which approved the Regulations of Law 10/2010, on the prevention of money laundering, and the subsequent amendment of this law by Royal Decree 11/2018, of 31 April and 7/2021, of 27 April, detail the formal and real identification procedure to be followed by obliged parties, including notaries and registrars, when dealing with trusts [Art. 2. 2 n)].

Trusts therefore operate in Spain subject to rules of absolute transparency. In addition to public law, their nature as trusts generally allows them to be adapted, in accordance with Law 29/2015 of 30 July 2015 on international legal cooperation in civil matters, for the acquisition of assets in Spain.

Nothing should therefore prevent the recognition of this type of trust, without prejudice to other possibilities, for the benefit of the person with a disability if it is ordered in the jurisdiction of his or her habitual residence, if necessary with the necessary adaptation.