What rights do they have over the home? What if they were divorced or a domestic partnership?

The National Institute of Statistics (INE), in the absence of specifying the final data, estimates that Spain will have closed 2020 with 466,583 deaths, which represents an increase of 12.4% more than the previous year. That is, 51,513 more people will have died in the year of the coronavirus pandemic. For its part, the Daily Mortality Monitoring System (MoMo) of the Carlos III Health Institute (also a public body) raises the excess mortality to 70,703 deaths in Spain at the end of 2020.

In any case, it is clear that Covid-19 has caused a very significant increase in the number of deceased people throughout the country.

One of the many consequences derived from this increase in deaths is the dilemmas that arise around inheritances, which sometimes lead to family disputes.

Do children or spouses have more rights?

According to the lawyer Jesús María Ruiz de Arriaga, from the Arriaga Asociados law firm, “in everything related to inheritances between individuals, it seems that the law protects children from the widower, and it seems that the inheritance rights of the spouse are less than those of children”.


And it is that, as the Spanish Civil Code emphasizes, “once one of the spouses has died, the clothes, furniture and belongings that constitute the trousseau of the spouses’ common habitual residence will be given to the one who survives, without counting it to their credit.”

Profit, separation of property or any other

Ruiz Arriaga adds that “this rule is independent of whether the spouses are married in joint property, separation of property or in accordance with any other economic regime: upon the death of a husband, the widower or widower has the right to household goods, since it is assumed that they have been acquired between the two.

However, adds the lawyer of Arriaga Asociados, it is necessary to take into account certain assets that are not included or considered household goods: jewelry, artistic and historical objects and others of extraordinary value.

What rights does the spouse have to the home?

An old man in a subway station
An old man in a subway station
Eduardo Parra – Europa Press

If the spouses were married under the community property regime (which is the usual one in the common law sphere), when a spouse dies, two different settlements are actually produced.

On the one hand, the community property is liquidated, awarding one half to the widower and the other half is entered into the inheritance.

On the other hand, the liquidation and partition of the inheritance is carried out, which will be composed of half of the joint assets that corresponded to the deceased and by all of the deceased’s own or proprietary assets.

At the time of liquidating the community property regime, the lawyer explains, “the survivor may request, at his / her choice, if he prefers that the property of the entire family home be attributed to him or that a right be constituted over it in his favor of use or habitation, the usufruct ”. However, if the value of the assets or the right exceeds that which would correspond to the inheritance, you must pay the difference in money to the heirs.

This is very important because this prevents the children from being able to deprive the married spouse of the use of the property in property: they will be able to take ownership of it but they will never be able to leave the survivor without the use of it.

What are the legitimate and the third improvement?

According to the lawyer Francisco Alba, “in our right there are a series of people, united for reasons of consanguinity (children or descendants and parents or ascendants) or familiarity (spouse), to whom by law a part of the deceased’s estate is reserved ». This is what in legal terms is called ‘legitimate’.

The legitimate of the widowed spouse, if he concurs to the inheritance with children or descendants of the deceased, consists of a usufruct right over a third part of the inheritance, which is legally called ‘usufruct of one third of the third of improvement’. And if he concurs with parents or ascendants, he is entitled to the usufruct of half of the inheritance.

Only in the event that there are no children or descendants or parents or ascendants, the widowed spouse becomes the universal heir of all assets.

What happens to widowed, unmarried, separated or divorced couples?

The de facto partner of the deceased, in common law, does not hold any type of hereditary right over the estate of the deceased. The only way that the de facto couple could inherit, would be in the event that the deceased in his will and respecting the legitimate ones in favor of his forced heirs, attributed a part of the inheritance to him, as stressed by the legal expert in inheritance Francisco José Sunrise.

For their part, divorced, judicially separated and de facto separated spouses have no hereditary rights. Neither will widows of marriages declared null, except if the nullity is after death and the survivor had acted in good faith.

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