Is the usufruct inherited?

Is the usufruct inherited?

Is the usufruct inherited?

The usufruct is a right in rem that grants the usufructuary the right to enjoy the property of others with the obligation to preserve its form and essence, unless the title that constitutes it or the law authorizes otherwise.

The title that constitutes the usufruct can sometimes be an inheritance, either because the usufruct is formalized at that very moment, or because a usufruct that existed before the death of the testator is transferred.

Below we are going to analyze the different cases that can give rise to a usufruct being inherited.

Can you inherit a usufruct?

Yes, the usufruct can be inherited like any real right. However, there are some cases in which the usufruct is constituted in such a way that it is extinguished when the beneficiary dies, as is the case of the usufruct for life, which only lasts as long as the person in whose favor it is created lives.

When can a usufruct be inherited?

There are different cases in which a right of usufruct can be transferred as a result of an inheritance:

When the testator has the usufruct over an asset

The testator cannot inherit what he does not have. So if he does not have full ownership or bare ownership of an asset, he cannot transfer those rights. In these cases, if what you have in your favor is a right of usufruct, you can only transfer that right.

The usufruct is a right in rem that can be disposed of as it would be with any other, i.e,. The person who holds a right of usufruct can sell it to a third party. Or lease the property subject to usufruct, or perform any other act of disposition on his right of usufruct.

However, any contract entered into by the usufructuary will be terminated when the right of usufruct is extinguished, except for the lease of rural properties. Which will be considered subsisting during the agricultural year.

It must be borne in mind that the new acquirer of the right of usufruct will have his right limited to those of the usufruct itself, i.e. He will never be able to acquire complete ownership of the property, nor bare ownership (which is the part of the property right available to a person excluding the usufruct).

The usufruct can be constituted over all or part of an asset, and also for a certain period of time from a date or until a date, which means that it can be transmitted during life or by inheritance respecting these time limits.

When the testator so constitutes it in his will

The usufruct may be constituted by law, by prescription, by the will of individuals manifested in acts between the living or by will (Article 468 of the Civil Code). And it can also be constituted in favor of one person or several, simultaneously or successively.

It follows that a person may make a will and leave an asset in usufruct to another. And that the usufruct may be transferred to a third person when the previous person dies. In that case, the usufruct would be inherited by virtue of the will.

In addition, it must be taken into account that the law itself requires that the usufruct be constituted in favor of the widowed spouse, as a way of ensuring his or her legitimate over the inheritance.

What does usufruct in favor of the widowed spouse consist of?

In the case of making a will, the law requires respect for inheritance rights in favour of some relatives. Which are, in this order:

  • Children and descendants.
  • Parents and ascendants.
  • The widowed spouse.

The rights in favour of the widowed spouse consist of a lifetime usufruct over a portion of the inheritance. Which varies depending on whether the spouse concurs in the succession with the children or descendants. With the parents or ascendants, or in the absence of all of the above.

Thus, the usufruct in favor of the widowed spouse will fall on:

  • The third improvement, if the spouse has children or descendants of the deceased.
  • Half of the inheritance, if the spouse concurs with parents or ascendants.
  • Two-thirds of the estate, if there are no descendants or ascendants of the deceased.

This right of usufruct is for life, so it is not inherited when the widowed spouse dies. However, during his or her lifetime, the widowed spouse may dispose of the usufruct as he or she prefers. Always bearing in mind that the contracts entered into will be terminated when his or her right of usufruct disappears, as indicated above.


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