The surviving spouse’s usufruct in Spain: entitlement, commutation and living alongside the children

What the law gives the surviving spouse

Under Spanish common law (the law that applies in Madrid), the surviving spouse is a forced heir, but their forced share is not a share in ownership: it is a usufructo — a life interest, the right to use and enjoy the assets and to take the income from them for life. Its extent depends on who else takes the estate (arts. 834, 837 and 838 CC):

• Alongside children or descendants: a life interest over the betterment third.
• Alongside ascendants (the deceased’s parents) and with no descendants: a life interest over half of the estate.
• With neither descendants nor ascendants: a life interest over two thirds.

To have this right, the surviving spouse must not have been legally separated or separated in fact from the deceased at the date of death (art. 834 CC). An unmarried partner has no forced share at all under Spanish common law: only whatever the will leaves them, within what the testator was free to dispose of.

The universal usufruct and the cautela socini

The most common arrangement in married couples with children is for each spouse to leave the other, by will, the universal usufruct over the whole estate, with the children taking the bare ownership. That is more than the law guarantees the surviving spouse, so the children could refuse it to the extent that it burdens their strict forced share. To prevent that, wills usually include what is known as a cautela socini, a clause the Supreme Court (Tribunal Supremo) has held valid on the basis of art. 820.3 CC: the child who respects the universal usufruct receives their full share of the estate (forced share, betterment and freely disposable part) subject to it; the child who objects keeps only their strict forced share, free of the usufruct.

The clause works because it puts each child to an economic choice: respect the surviving spouse and inherit more, or take the strict forced share now and inherit less. Our job is to calculate both options with real figures before anyone signs anything.

Commuting the usufruct: annuity, capital or assets

A life interest over particular assets is usually uncomfortable for everybody: the surviving spouse cannot sell, the children cannot deal with the property, and every item of expenditure has to be agreed. That is why the law allows it to be commuted: the heirs may replace the surviving spouse’s usufruct with a life annuity, with the income from particular assets or with a cash sum, by agreement with them and, failing agreement, by order of the court (art. 839 CC). Until that is done, the estate’s assets remain charged with payment of it.

Where the surviving spouse takes the estate alongside children of the deceased only (a second marriage), it is the surviving spouse who may require their usufruct to be paid in a capital sum or with a parcel of estate assets, at the children’s choice (art. 840 CC), so as not to depend on them for years.

The family home and the household contents

The surviving spouse is entitled to keep the household contents (clothing, furniture and effects of the matrimonial home) without their being counted against their share (art. 1321 CC), but has no automatic right to the home itself. If the house belonged to both of them, half is already theirs once the matrimonial property regime is wound up, and the other half falls into the estate subject to their usufruct; in practice, the surviving spouse can carry on living there for as long as the usufruct lasts. When it is commuted, or when the children want to sell, the way out is usually to transfer the home to the surviving spouse against compensation, or to sell it and divide the proceeds: we explain this in our guide to ending co-ownership.

Common problems

• Children who will not respect the universal usufruct and a surviving spouse who will not commute it: working through the cautela socini arithmetic usually resolves the dispute.
• Second marriages with children from a first marriage: art. 840 CC and a properly conducted winding-up of the matrimonial property regime can avoid years of deadlock.
• Undocumented separation in fact: the children may deny the surviving spouse their forced share by proving that the couple had stopped living together; the spouse will seek to prove the opposite. It is a question of evidence.
• A life tenant who does not pay the council property tax (IBI), the service charges or the ordinary upkeep, all of which fall to them as life tenant (arts. 500 and 504 CC), or children who demand that they meet extraordinary costs which are in fact the children’s.

Deadlines worth not letting slip

• Commutation is applied for in the division itself; until it is carried out, the assets remain charged and the children cannot deal with them freely.
• Six months for inheritance tax: the surviving spouse is taxed on the fiscal value of their usufruct and the children on the bare ownership, with the later consolidation of the two.

Where we work

Our office is in Villanueva de la Cañada, and we regularly act in Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón, Brunete, Villanueva del Pardillo, Valdemorillo and the rest of western Madrid. Succession proceedings are heard by the court for the place where the deceased was last domiciled, not where the heirs live: if you live outside the area, or outside Spain, that is no obstacle to our handling the case. This guide forms part of our inheritance and succession practice in Villanueva de la Cañada.