Deaths have increased over the last year in Spain, most of them related to the coronavirus pandemic, the biggest health crisis in the last century. The unexpected death of a family member is followed by the legal process of the transfer of their assets, rights and obligations. But what happens if the deceased has not left a will? The distribution of the inheritance would be done in accordance with the law, which could jeopardize the permanence of the widowed spouse in the family home.
From the Ático Jurídico law firm, they remind us that we must be prepared for everything, especially in these times of uncertainty and the harshness of death, and that in the current situation it is a propitious moment to consider the need and convenience to grant a will, to avoid future problems for our loved ones.
What corresponds to the spouse if their partner dies without a will
“With the death of a person begins the process for the transmission of their assets, rights and obligations. If the deceased designated his successors while alive and what should be the destination of his assets, we will find ourselves before the so-called voluntary or testamentary succession. In the absence of a will, we will be facing what is known as legal or intestate succession. Well, in such a case, the successors and the distribution will be those that correspond according to the law”, clarifies Salvador Salcedo, legal partner of Ático Jurídico.
The law grants the widowed spouse, along with the deceased's children and parents, the status of forced heirs, in which a portion of the deceased's estate is reserved for them. This portion is commonly known as the legitimate.
“The legitimacy of the spouse who has been widowed presents certain peculiarities. Since it is specified in a part of the inheritance in usufruct, whose share will vary depending on the heirs with whom the deceased's partner participates in the inheritance. Being possible to assign money or goods in payment of the usufruct”, Salcedo specifies.
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The widower will have the right to the legitimate property of his spouse, as long as they remain married. Mediating separation, whether judicial or de facto, he will lose his right. If the widowed spouse participates in the inheritance with children or descendants of the deceased, they will be entitled to one third of the inheritance in usufruct. If there are no descendants, but there are ascendants, you will be entitled to half of the inheritance in usufruct. In the absence of ascendants and descendants, then two thirds of the inheritance will correspond in usufruct.
What problems can there be with the family home if the spouse dies without a will?
“The family home, whether or not it is the only asset in the inheritance, normally has a special value for the spouses that they have suffered a loss, because it is their home and the residence they shared with their partner until their death”, stand out from Ático Jurídico. “If the property was acquired by the spouses in equal parts, half of the floor will belong to the widower, plus the portion of usufruct that corresponds to the other part, by the inheritance of the deceased. Therefore, the widowed spouse is the majority owner”, they specified.
It is not strange, on the contrary, to find that the exclusive ownership of the property belonged to the deceased. For having bought the apartment before getting married, with private money while married, or by inheritance or donation from his relatives. “In such a case, if the deceased dies without a will, only a usufruct portion of the home will correspond to the widow. That it will be a minority if it concurs to the inheritance with the children or descendants of the deceased”, clarifies the lawyer.
“The normal thing, if the deceased died without a will, is that the family home is acquired by the children and the widow in accordance with the law and by inheritance title. Being obliged to understand each other and reach agreements regarding the use of the home. Differences may arise if there are no good relations or there are conflicting economic interests between the heirs. Which could lead, in the worst case, to the sale of the property. Seeing the spouse forced to leave their home ”, they underline from Ático Jurídico.
It is useful to make a will to guarantee the couple the use of the family home in the event of death
In general, the desire of the spouses is that the other be the one to enjoy the assets of the inheritance upon the death of one of them, especially of the family home that has been their habitual residence. “To guarantee this claim, a will will be required. So it will be the testator who grants his spouse the universal and life usufruct of his assets. Otherwise, in the absence of a will, only the portion of usufruct that the law grants her will correspond to the widow”, emphasizes Salvador Salcedo.
The testamentary formula commonly used to protect the spouse is the one that includes the clause called 'cautela socini', with which the testator intends to ensure that his will to favor his spouse is respected, attributing to him the use and enjoyment of the assets hereditary while alive. “So that if one of the children does not accept it and claims his part, he will be penalized by receiving only the strict legitimate. That is, only the part that corresponds to one third of the inheritance of his father or his mother ”, they add from the law firm.
“The will is therefore the way to strengthen the position of the widowed spouse in the future inheritance. And to make it possible for the patrimony generated by the spouses to pass from one to the other, and then to the children”, they specify. "Thus, the widower, after the death of his consort, will not have to be at the mercy of the will of his descendants, thus avoiding badly given circumstances, such as the widow being forced to abandon her home, for having forced the sale the children of the deceased.