This article focuses on the rights belonging to the spouse of the deceased, better known as a widow or widower.
One of the many questions that arises before the death of a spouse is: what happens to the person who survives the deceased? To answer this question, we must identify various distinct scenarios:
- Married, not separated, and with children: Article 834 of the Spanish Civil Code (CC) regulates this situation and determines that in the case there are children from the marriage (whether biological or through adoption), the spouse of the deceased (the widow or widower) is entitled to the usufruct of 1/3 of the estate destined for betterment.
However, what is usufruct? Article 467 of the CC regulates usufruct. It is the right that entitles a widow or widower to enjoy the property with the obligation to preserve its form and substance. With usufruct, the widow or widower does not acquire ownership of the property but only the right to enjoy the property of the deceased.
What is betterment? Article 823 of the CC regulates betterment. Article 823 indicates that the deceased (mother or father) may freely dispose of 1/3 of the estate (exclusively destined for the descendants) in favour of their children or decedents.
What happens when the decedents are only of the deceased? In this case, as established in Article 840 of the CC, the widow or widower may request that his or her right of usufruct be satisfied either by payment of a cash sum or by assignment of a set of estate properties. In any case, the decision of assignment is in the hands of the descendants and not the widow or widower.
- Separated but reconciled marriage: So that the widow’s or widower’s rights noted above are recognized, it is necessary that the reconciliation be duly notified before the judge who has heard the separation proceedings.
- Married, not separated, and without children but with ancestors: In this case, the widow or widower is entitled to the usufruct of 1/2 of the inheritance.
- Married, not separated, and without decedents or ancestors: The widow or widower is entitled to the usufruct of 2/3 of the inheritance.
Before determining what portion of the entire inheritance corresponds to the widow or widower or the spouse of the deceased, it is important to know the civil status of the marriage at the time of death and whether it coincides with the inheritance of the decedents or ancestors.
This article is not considered as legal advice