Death of a British National in Spain

Posted in Legal on 17 Aug 2016

 
(article supplied courtesy of the British Consul in Santa Cruz)

The death of a relative or friend is always a tragedy, but if it happens abroad the distress can be made worse by simple practical problems. The Consular Directorate in the Foreign and Commonwealth Office and our Consulates in Spain are ready to help in any way that they can. It may be that you are uncertain as to what to do next, or who to contact for advice, and you need to be aware that Spanish procedures differ significantly from those in the United Kingdom.

Standard Procedures

Except in remote rural areas, Spanish undertakers are modern, well-equipped companies used to working with foreigners, with most firms having at least one English-speaking staff member. Following the death of a British national in Spain, their next of kin, or a formally appointed representative, must decide whether to repatriate the loved one’s body to the UK, or whether to carry out a local burial or cremation. If the deceased was covered by travel insurance, it is important for the next of kin to contact the insurance company without delay. If there is no insurance cover, the cost of repatriation or burial will need to be met by the family, as neither the Foreign and Commonwealth Office nor our Consulates in Spain have budgets to meet these costs.
Consular staff in London will pass on to the Consulate in Spain the wishes of the next of kin about disposal of the body, and details of who is taking responsibility for the costs involved. Under a strict interpretation of Spanish law, a deceased person must be buried within 72 hours of death. However, in the case of foreign nationals, the authorities will normally allow as much time as necessary, although this generally should not be longer than a few days. It is important to remember that if the deceased was travelling with a tour operator, they can be a valuable source of assistance and advice.

Repatriation

If the deceased was covered by travel insurance, the insurance company will normally have a standing agreement with an International funeral director in Britain to arrange repatriation. If the deceased is not covered by insurance, next of kin will need to appoint an undertaker in Spain or an International funeral director themselves. Spanish undertakers have links with international undertakers in the UK and they normally work well together to ensure that all necessary requirements are met in Spain and in the UK.
Local Undertakers in Spain are equipped to carry out repatriation procedures and will provide the special caskets required for the international carriage of human remains. A local Civil Registry death certificate, plus the doctor's death certificate (indicating cause of death), a certificate of embalming, and a certificate giving permission to transfer the remains to the UK is required to ship the body. This will be arranged by the Spanish Undertaker. Local formalities for repatriation normally take 8 to 10 days to complete.

Local Burial

If the next of kin choose to proceed with a local burial, they will need to instruct a local funeral director. Please note that in Spain 'burial' often means an above ground crypt, and rights to this are normally held for only 5 years, unless specifically purchased in perpetuity.

Local Cremation

Cremation is now widely accepted in Spain and, except in rural areas, there are modern, well equipped, crematoria. If next of kin choose local cremation and wish to take the ashes back to the UK themselves, they can do so with minimal bureaucracy. If this is not possible, local undertakers will be able to arrange the necessary paperwork and transportation. There are no restrictions on movement of ashes within the EU.
Inquests
If the circumstances of the death were not unusual, registration of the death is permitted and the body will be released for repatriation or burial within a few hours. However, if an Examining Magistrate is not satisfied after a preliminary examination of the facts, an autopsy may be required. Further investigations and interviews with witnesses may also be called for before a decision is made as to cause of death.
In cases of sudden or unexpected death, whether by accident or misadventure, or where a person dies unattended, the Examining Magistrate will prepare a report of his findings and the body will be released for burial. The Magistrate's report will be retained by the Court and may only be released to the legal representative (a local lawyer) of the next of kin. However, if death was caused by a criminal act, the police will be ordered to conduct a full investigation. The State Prosecutor will then decide whether to prosecute and this can delay the release of the body for burial.

Autopsies/Removal of Organs

Autopsies are carried out by court appointed forensic doctors. During an autopsy, organs can be removed for testing, including toxicological studies at the discretion of the doctor without consent of next of kin. Next of kin are not informed about the removal of any organs. The deceased’s body can be buried or cremated in Spain or returned to the UK before tests on removed organs are completed. Any organs removed are retained for the duration of the tests, and are then put in storage for at least one month before being destroyed. Organs cannot be removed for any purpose other than testing without prior consent of the deceased (for research) or next of kin (transplants).
Next of kin can seek a court order requiring the eventual return of these organs. If the deceased’s body has been repatriated, next of kin should contact their local coroner in the UK in order to request the return of any organs removed.

UK Coroners

When a body is repatriated to England or Wales, a coroner will hold an inquest only if the death was violent or unnatural, or if the death was sudden and the cause unknown. In some countries the cause of death is not given on the death certificate, and coroners do not generally have access to judicial files from other countries. Consequently coroners may order a post-mortem as part of the inquest.
Coroners can request copies of post-mortem and police reports from the Spanish authorities. However, these will only be provided once any judicial proceedings are completed. In some instances this can take many months.
In Scotland, the Scottish Executive is the responsible authority. However, they are not obliged to hold an inquest into cause of death. Coroners in Northern Ireland are also not obliged to hold an inquest into cause of death. However, next of kin can apply for a judicial review if no inquest is held.

Release of Information

Access to information concerning a death, other than post-mortem and police reports, is restricted and the Spanish authorities will not provide this information directly to next of kin, or to third parties including our Consulates. Requests for information should be made through a legal representative and it should be noted that release of any information can take many months, and the documents provided will be in Spanish.

Legal Aid

British nationals without the available means to appoint legal representation can apply for legal aid in most European countries. The Legal Services Commission in London (email: ho.complaints@legalaid.gsi.gov.uk) is responsible for legal aid applications overseas. The Legal Services Commission currently forwards applications for legal aid to their counterparts in Spain, where cases will be considered for their eligibility (based on Spain’s criteria).

Consular Death Registration

There is no obligation for the death overseas of a British national to be registered with the British Embassy. However, there are the advantages in that a British form of death certificate is then available, and that a record of the death is afterwards held at the General Register Office in the UK. To apply from within the UK, you should contact the Nationality and Passports Section of the Consular Directorate, Old Admiralty Building, London SW1A 2AF.
If you are applying from Tenerife, you should contact:

British Consulate
Plaza Weyler, 8, 1º
38003 Santa Cruz de Tenerife
Tel.: 922 28 68 63
E-mail: tenerife.enquiries@fco.gov.uk

Or

Foreign and Commonwealth Office
London Spain Desk
Consular Directorate
Tel: +44 20 7008 0148/0189/0178/0174

The website www.ukinspain.com is a valuable resource for all UK nationals living in Tenerife.