The terms of an inheritance are always in accordance with those established by the Civil Code. The spirit of this rule seeks to protect family assets, distributing assets among family members according to the provisions of the law. Hence, the figure of the widow usufruct is foreseen.

As we know, when a person dies, not only his legitimate partner is favored by the effects of inheritance, but his descendants and ascendants (if any) also appear in the hereditary scheme depending on the case. The widow's usufruct is a condition that seeks to protect the surviving spouse.

How is an inheritance structured?

First of all, it is prudent to remember that inheritance is regulated in the Civil Code and specifically establishes that all inheritance must be divided into three equal parts that are called the legitimate, the improvement and free disposal.

The part known as legitimate considers only the spouse and direct descendants. If there are no descendants, then direct ascendants come into play for inheritance, as long as they are still alive.

These premises are unavoidable by law, unless prior to the death a process has been expressly and legally managed to disinherit any of these family members who may receive an inheritance.

For the second third of the assets, only the relatives mentioned in the legitimate law can also participate as heirs, but with the exception that the deceased has been able to establish arbitrary proportions or amounts and not governed by law while still alive (through his will). , as in the case of the previous third.

This can especially favor one of these direct relatives who will receive something more than what is legally assigned by the legitimate one. Hence, the name of this second third is the improvement; that is, they have the power to increase the hereditary wealth for one of them specifically by express will of the deceased.

In both previous cases (legitimate and improvement) only forced heirs intervene, as they are typified in the Civil Code. However, in the last portion equivalent to one third, any person or institution that the deceased has foreseen via will may appear.

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It is prudent to clarify that there are details on this particular that may have variations depending on the autonomous community, so this factor will always have to be considered to execute an inheritance correctly.

What is the widow's usufruct and how does it work?

The widow's usufruct is a prerogative enjoyed by the surviving spouse and through which the law grants him the right to enjoy property over which he may not have property.

In most cases, what seeks to cover this condition is to prevent the deceased's partner from being left without residence as a result of the respective distribution of assets. That is why it is expected that he has the preeminent right of usufruct that, among other things, allows him to continue inhabiting the property that he shared with the deceased person.

The widow's usufruct and the separation of assets

The calculation of the widow's usufruct varies according to how the circle of forced heirs is made up. If the situation is that the consort attends the inheritance with descendants, the rule stipulates that he receives the third identified as the improvement by concept of usufruct.

If the widowed spouse concurs to the act of inheritance only with ascendants –without descendants–, then it corresponds to him to take the equivalent of the inheritance. And if he is only able to inherit, he will choose to stay for the two-thirds corresponding to the legitimate one and the improvement.

If perhaps the deceased through a legally registered will has not provided anything special for the third in which he can grant assets to people without any type of connection, this last portion will be treated in the same terms as the legitimate one.

Thus, the real estate that is part of the inheritance, although due to the distribution they touch more than one of the family members involved, will be at the mercy of the widowed spouse, who may continue to use them for life before attempting any liquidation.

Of course, there may be agreements in which the parties negotiate and proceed to promote a satisfactory settlement for all those involved. The issue is that the protection of the legitimate partner who survives the death of the spouse is always ahead, precisely guaranteed by the widow's usufruct.

It should be added that even if the couple has decided to live with a separation of property regime, this will not prevent the application of what concerns the legitimate. That is, even in that case the spouse will have hereditary participation.

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