In recent years, we have witnessed an unstoppable rise of digital assets, dominated by cryptocurrencies like Bitcoin and Ethereum, and non-fungible tokens (NFTs). In our daily practice, we find that these assets have become a significant part of personal estates, posing unique challenges in the field of succession law. Managing these digital assets in an inheritance not only requires technical knowledge but also a deep understanding of the applicable regulatory and tax framework, which is still evolving.
Location and Inventory of Digital Assets
One of the first challenges when managing an inheritance with cryptocurrencies and NFTs is the location and inventory of these assets. Unlike traditional assets, digital assets are not physically present and often lack centralized records. The key to their location lies in identifying the digital wallets associated with the deceased, as well as any traces of transactions that may have been conducted through exchange platforms.
In this context, the transfer of private keys becomes a critical aspect. Without access to these keys, recovering the assets is practically impossible, which could result in an irreparable loss for the heirs. Therefore, it is essential for testators to leave clear instructions on how to access their digital assets, whether through wills or separate documents, always considering the security and confidentiality of sensitive information.
Valuation for Inheritance and Gift Tax Purposes
Once located, the valuation of cryptocurrencies and NFTs for Inheritance and Gift Tax (ISD) purposes is another crucial step. According to current regulations, assets must be valued at their market price on the date of the deceased's passing. However, the inherent volatility of these assets complicates this task, as their value can fluctuate significantly over short periods.
The General Directorate of Taxes (DGT) has issued several binding consultations (for example, V0486-22), establishing that the valuation must be based on the market price on the most relevant exchange on that date. However, this is not always straightforward, as different platforms may show varying prices. Additionally, the consideration of transaction fees and asset liquidity must be part of the analysis to provide a fair and accurate valuation.
Tax Obligations and Declaration to the AEAT
Cryptocurrencies and NFTs, like other assets, must be declared to the Spanish Tax Agency (AEAT) as part of the deceased's estate. Current regulations require heirs to submit model 650 for ISD declaration, including these digital assets in the inventory of goods, which can be complex due to their digital nature and lack of physical documentation.
Moreover, it is important to highlight that failure to declare or an incorrect declaration can lead to significant penalties. In practice, we have seen how these errors commonly arise due to ignorance or inadequate valuation of the assets, underscoring the importance of having specialized advice in this area.
Risks of Loss and Litigation
The digital and decentralized nature of cryptocurrencies and NFTs carries an inherent risk of loss, especially when private keys are lost or not transferred properly. In our experience, this has led to an increase in litigation, with disputes among heirs regarding the existence, ownership, and access to these assets.
Spanish courts are still in the process of developing consolidated jurisprudence on these issues. However, some rulings have begun to address the matter, such as the recent decision by the Supreme Court (STS 12/2025), which dealt with the validity of a will that included instructions for accessing cryptocurrencies through a 'digital will letter'. Such decisions are indicative of the direction that jurisprudence may take in the future.
- The testator must include clear instructions on accessing their digital assets.
- Heirs must submit model 650 including cryptocurrencies and NFTs.
- It is essential to conduct a precise and documented valuation of the assets on the date of death.
In conclusion, managing cryptocurrencies and NFTs in the succession context presents unique challenges that require a specialized approach. Proper location, valuation, and declaration of these assets are essential to avoid fiscal and legal risks. Tools like LexPartis can assist legal professionals in the rigorous and efficient management of these complex inheritance processes.