Inheritance with separation of property. Rights of the widowed spouse

Inheritance with separation of property. Rights of the widowed spouse
Published on: 12 June 2024

Table of contents

Separation of property is an increasingly popular matrimonial property regime in Spain. In fact, there are already several autonomous communities in which it is chosen by default over community property. But what does the death of one spouse mean for the other? Here we want to talk about all the important aspects related to inheritance and separation of property.

What is separation of property?

As we hinted at in the introduction, separation of property is a financial regime that the spouses choose at the time of entering into the marriage. It implies that the assets of each spouse are independent of those of the other. In more colloquial terms, it means that "what is mine is mine and what is yours is yours".

Unless the spouses reside in the Balearic Islands or in Catalonia at the time of the marriage, the economic regime that will be chosen by default will be the community of property regime. In all other cases, the separation of property must be agreed by means of a document called "marriage contracts". Specifically, this is an agreement in which you both determine the rules that will govern the marital partnership. We will be pleased to help you.

Inheritance with separation of property: widow's/widower's rights

Article 807 of the Civil Code states that the widow or widower, regardless of the economic regime he or she was under at the time of marriage, is a forced heir of the deceased spouse. This means that, whatever happens, he or she is entitled to a share of the inheritance.

This is called "widow's or widower's rights". However, they vary depending on whether the marriage was based on a separate property regime or a community of property regime. Let's look at the difference:

  • Community of property and inheritance for the widowed spouse. He or she is entitled to 50% of the deceased's assets and the usufruct of the widow(er)'s estate.
  • Separation of property and inheritance for the widowed spouse. In this case, the widowed spouse is only entitled to the usufruct of the estate.

What does a widow in separation of property inherit? Widow's usufruct

The key concept here is the widow's usufruct. Specifically, this is the right that the widowed spouse retains with respect to the use of the deceased's property and the enjoyment of the corresponding benefits. He or she also has the obligation to keep them as if they were his or her own.

Obviously, the widowed spouse's usufruct does not constitute property and therefore the widowed spouse is not entitled to sell, mortgage or use as security the property in question to which it refers.

But how much is the usufruct of property? It all depends on the family situation of the married couple at the time of death:

  • Marriage with children.In this case, the usufruct of the estate falls on the third of improvement.
  • Marriage without children but with ascendants of the deceased spouse. The usufruct of the estate is 50 % of the inheritance.
  • Marriage without children and without ascendants. The usufruct of the estate corresponds to two thirds of the total inheritance.

The only possibility for the widowed spouse to inherit the deceased's property is if there is no forced heir. In other words, there are no ascendants, descendants, siblings or any other relative who could have this right.

For this reason, in order to prevent possible problems in the event of separation of property and widowhood, the most advisable thing to do is to make a living will. In fact, the ideal is to allocate the third of free disposal or improvement to leave the widowed spouse some property that will guarantee his or her economic well-being after death.

How is the widow's or widower's usufruct paid?

The law gives the heirs considerable freedom in the payment of the widow's or widower's usufruct to the widowed spouse. For example, they can do so by:

  • The use of the habitual residence or any other dwelling indefinitely or for a limited amount of time.
  • The payment of an annuity or temporary annuity.
  • The payment of a lump sum of money.
  • Shares in the widower's business.

There is only one requirement to be fulfilled in order to pay the usufruct in one of these ways or in any other way: that there is an agreement between the heirs and the widowed spouse. If no agreement can be reached, there is no other option but to take legal action to have a judge determine how the payment is to be made.

The widow's/widower's pension

Another very common doubt among those who are considering whether or not to join the separation of property regime is whether, in the event of the death of one of the spouses, the other spouse will be entitled to a widow's or widower's pension.

In this respect, it should be noted that the entitlement to a widow's/widower's pension has nothing to do with the inheritance left by the deceased spouse. To receive it, all that is necessary is to meet the requirements of the General Social Security Act.

Heirs in the separation of property regime

It goes without saying that the separation of property regime has many advantages. For example, it facilitates the distribution of assets in the event of death or divorce. It also facilitates the management of personal assets and prevents a debt from dragging you both down financially.

However, in the event of the death of one spouse, it can leave the surviving spouse relatively helpless. Especially when it comes to the distribution of the inheritance. Of course, it is nothing that cannot be solved by making a will, as we said above.

In any case, it is always advisable to seek the advice of an expert inheritance lawyer. So, if you have any doubts regarding inheritance with separation of property, do not hesitate to contact us.


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