CASE LAW: WILL & INHERITANCE CONSULTATION
Inheritance rights of the widowed spouse.
THE FACTS OF OUR CLIENT’S CASE
R, a British subject domiciled in Spain, devised Spanish property in his Spanish Will. According English law, makes no provision for one of his daughters. The testator made a valid Spanish Will before the Spanish notary. Leaving all his assets, shares and actions located in Spain to one of his daughters and making no provision for the other one. (L). She claimed to be entitled to her legitima portio under Spanish law.
OUR LEGAL OPINION: Spanish law position
When a person dies, by law, certain relatives have compulsory inheritance rights: these are, in this order, the descendants, the ascendants and, in any case, the widow or widower.
The compulsory inheritance rights of these relatives prevent or limit the testator’s full disposition of his inheritance: the law obliges him to reserve a certain percentage of his property for his legal heirs and prevents him from leaving it all to whomever he wishes.
It is common for both spouses to want to leave each other the universal and reciprocal usufruct of the inheritance in a Will. (What is often called “from one to the other”). With this system, in practice, upon the death of one spouse, the other spouse continues to administer the entire family estate. And the children do not usually claim the delivery of lots of goods or money until the last parent is deceased. In cases of remarried divorcees, this system is not possible if there are children from the first marriage.
Because they are entitled to receive their share of their father’s estate as soon as he dies, without having to wait for the death of his second wife or partner.
In most cases, the main concern of the divorced person is to ensure that the widow can continue to live in the house that was the last family home.
For these cases, it may be a good formula to leave her ownership of the house by ordering in the Will a “legacy of specific real estate”. Which would be against the free third if they were not married, or against the free third plus the widow’s legitimate share, if they were married.
It is convenient to reinforce this with the provision that if the value of the house exceeds such proportions (it represents more than a third of the total inheritance). The widow always has the option of keeping the whole house. Paying the excess value in money out of her own pocket to the other legitimated beneficiaries (the children of the deceased. Whether or not in common with the second widow), or keeping only the usufruct of the whole house. (The right to live in it, but not to sell it), with the children acquiring ownership from the time of death.
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Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practising Spanish Solicitor