What usufruct corresponds to the widowed spouse?
The law reserves for the widowed spouse a part of the deceased spouse’s inheritance. Called the widowed spouse’s usufruct or widow’s usufruct.
In short, it is the widowed spouse’s share of the legitimate share.
What are the rights of the widowed spouse in the inheritance of his or her spouse?
The widowed spouse is entitled to receive the usufruct of a portion of the deceased spouse’s estate.
In other words, this part of the inheritance, reserved by law, is received by the widowed spouse in usufruct. Therefore, the widow/widower will be able to enjoy the assets, but will not be able to sell, mortgage…
If the matrimonial property regime is that of community of property. Half of the marital property belongs to the widowed spouse and the other half constitutes the estate. In other words, the widowed spouse will be entitled to the usufruct of a part of that half of the community property.
In both testate and intestate succession (lack of a will), the widowed spouse will be entitled to legal usufruct.
However, in testate succession, the testator may also freely dispose of another part of the inheritance and leave it to the widowed spouse. This is a way to protect the widowed spouse so that, after the death of the other, they are not left helpless.
In this article we are going to refer exclusively to the part of the inheritance reserved by law to the widowed spouse, the widow’s usufruct.
How much of the inheritance is reserved for the usufruct of the widowed spouse?
The amount reserved for the usufruct of the widow/widower varies according to the type of heirs with whom he/she concurs in the inheritance:
- Widowed spouse and children or descendants: If the widowed spouse concurs in the inheritance with children or descendants. He or she will receive in usufruct one third of the inheritance. Specifically the usufruct of the third of the improvement.
- Widowed spouse and ascendants of the deceased: If there are no descendants. But there are ascendants, the surviving spouse will be entitled to the usufruct of half of the inheritance.
- Widowed spouse only: If at the death of the spouse there are no descendants or ascendants. The widowed spouse will be entitled to the usufruct of two-thirds of the inheritance.
How is widow’s usufruct paid?
Let’s distinguish between the two forms contemplated by the law:
Usufruct of the widowed spouse and the heirs of the deceased (common children, ascendants, strangers…)
The heirs, by mutual agreement, may pay the widower his usufruct by:
- The assignment of an annuity.
- The proceeds of certain assets (e.g. rental income).
- Cash.
The agreement of all heirs is required. If the surviving spouse opposes this agreement or there is no agreement between the heirs, legal action may be initiated, with the Judge deciding.
Usufruct of the widowed spouse and children only of the deceased
If the surviving spouse and those who are only children of the deceased (i.e., who are not children of the widow/widower) concur in the inheritance. The widow/widower may demand payment of the usufruct with the delivery of:
- A capital in money
- A lot of hereditary property.
In this case, the widowed spouse is given the possibility of demanding from the children of the deceased alone this form of payment of their usufruct.
However, the children of the deceased will be the ones who choose between the delivery of money or inheritance.
Am I entitled to widow’s usufruct in the event of separation?
The answer is NO. The Act reserves widow’s usufruct to the surviving spouse. Provided that the marriage is in force at the time of the death of the other spouse.
Therefore, widows and widowers who are legally or de facto separated at the time of death are not entitled to usufruct.
Exception: If there is reconciliation at the time of death. The survivor will be entitled to the usufruct of the widowed spouse.
However, it is necessary that the reconciliation has been notified to the Court that issued the separation judgment or to the Notary who made the deed of separation.
Get advice from expert inheritance lawyers
The determination of the widow’s usufruct and/or its payment to the widow or widower is one of the moments in which most conflicts usually arise when it comes to distributing an inheritance.
For this reason, it is always advisable to have the advice of a lawyer specialising in inheritances who is looking for the best solution for your interests.
Their experience and specialization will allow the expert inheritance lawyer to analyze your case and advise you on how to act, defending your interests both judicially and extrajudicially.