Inheritances and the usufruct of the surviving espouse. Can it be traded for money or other assets?

Whether we like it or not, inheritances are often complicated and complex processes, involving tensions and disagreements. In today’s article we want to focus on the usufruct rights of the surviving espouse in Spain. And how those rights can be swapped (sometimes) for other assets in the inheritance, for an amount of money or even, for annuities.

As our readers may already know, in Spain, unlike in many countries in the Anglo-Saxon word, there are forced heirs. That is, certain close family members with rights over the state of the deceased, no matter what the will of the deceased stated. Among these forced heirs, exists the surviving espouse of the deceased. Under normal circumstances (the deceased having children), the widow/widower will have the right of the usufruct over 1/3 of the inheritance. In practice, this means that, if there is a property (house) in the estate, the widow can continue living in it. Or rent it and collect the monthly income, etc. The question is: can the heirs avoid this somehow?. In principle, yes.

The Spanish Civil Code has a specific provision, set in articles 839-840 that allows for the heirs to swap the usufruct of the surviving espouse for specific assets of the state, a certain amount of money, an annuity, etc. But how is it quantified in terms of value? For that, a simple rule applies, consisting in subtracting the age of the usufructuary to 89. For instance. Let’s assume there is an estate with properties, cars, bank accounts, etc. worth 600.000€. And a surviving spouse of 70 years old. The value of the usufruct will be of 89 – 70 = 19%. Being the 19% of 600.000€ a total of 114.000€. In this scenario, the heirs (children of the deceased) could capitalise the usufruct of the widow. Exchanging her usufruct rights for 114.000€ on specific assets or money of the state, an annuity, etc.

Can the widow/widower refuse?. We understand that, in principle, he/she cannot. As the Spanish Civil Code does not contemplate the acceptance of the widow for this possibility to operate. And the Spanish Supreme Court has confirmed so in several rulings. However, each case must be individually assessed. As the existence of a will or not, its wording, and other circumstances can be of particular relevance, depending on the case. And there is not unanimity on this matter (although the majority understands that it’s possible).

At White-Baos Lawyers we are committed to providing comprehensive support for inheritance matters, including the swap of the usufruct, testamentary processes, etc. Reach out to us, we will study your case and offer your expert legal advice on this and other issues.

You may be interested in the following services and articles:

Under Spanish Law, Who inherits when there is no Will?.

Are you an expatriate or foreigner, resident in Spain, but without a Will?. Legal consequences..

Spanish Property Law, the concept of usufruct in Spain.

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

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