The rights of the widowed spouse in Catalonia. Part II: Universal usufruct
Universal usufruct as protection
Redacción CIM Tax & Legal
Universal usufruct is a mechanism for protecting the surviving spouse, granted to the surviving spouse or cohabiting partner when participating in intestate succession with children of the deceased.
In the previous article, we discussed the concept of the fourth widow, which is the institution primarily aimed at compensating the surviving spouse for the imbalance caused by the death of their spouse. In this article, we will explore another hereditary institution that recognizes rights for the surviving spouse in the Civil Code of Catalonia, known as the universal usufruct.
The fourth book of the Civil Code of Catalonia concerning successions outlines the rights of the surviving spouse in the succession. In cases where there are no testamentary dispositions to govern the succession, making it intestate, the regulations set forth in the Civil Code of Catalonia will apply, provided that the deceased person had civil residence in Catalonia.
As a novelty introduced by the fourth book, similar to the institution of the fourth widow, the surviving spouse is equated with the stable cohabiting partner. Therefore, both will enjoy the same succession rights. If the surviving spouse or the cohabiting partner in a stable relationship participates in intestate succession with children or descendants of the deceased person, the right to the universal usufruct of the inheritance is recognized, free from the obligation to provide a bond. Thus, if there are no children or descendants participating in the succession, the inheritance is granted to the surviving spouse or the cohabiting partner in a stable relationship, while the parents of the deceased retain the right to the legitimate portion.
The right of universal usufruct extends to the entire inheritance, including the legitimate portions. However, legacies ordered in a codicil, specific attributions ordered in a succession pact, or donations due to death are excluded.
In the case of minor children participating in the inheritance, where the surviving spouse or cohabiting partner is the legal representative, they can exercise their representation for accepting the inheritance without the need for the intervention of a judicial defender and can be awarded the universal usufruct.
The right of universal usufruct will be extinguished due to general causes of usufruct termination, as outlined in the fifth book of the Civil Code of Catalonia, relating to real rights. These causes include the death of the usufructuary or the loss of the usufructed assets. However, the law expressly provides that the right of usufruct will not be lost in the event of remarriage or cohabitation with another person.
As a significant innovation for the improvement of the position of the surviving spouse or cohabiting partner, the option to commute the usufruct is introduced. Within a year, the surviving spouse or cohabiting partner can choose to commute the universal usufruct for the allocation of a aliquot quarter of the inheritance and, additionally, the usufruct of the conjugal or family home. This right will be extinguished once the acceptance of universal usufruct is expressly acknowledged.
The right of universal usufruct encompasses the entire inheritance, including legitimate portions.
To calculate the aliquot quarter of the inheritance, the starting point is the value of the assets in the liquid hereditary estate at the time of the decedent's death, deducting assets disposed of in a codicil or succession pact but not the legitimate portions. This portion can be paid through the allocation of inheritance assets or directly with money, with the choice of payment method left to the heirs.
The right to universal usufruct is not accrued when the surviving spouse or cohabiting partner lacks the right to succeed. In the case of the surviving spouse, they will not have the right to succeed, and therefore will not be a beneficiary of universal usufruct if, at the time of the succession opening, they were legally or de facto separated or if there was a pending annulment, divorce, or separation lawsuit, unless the spouses have reconciled. On the other hand, in the case of the surviving cohabiting partner, they will lack the right to succeed if they were de facto separated from the deceased at the time of their death.
As indicated, these rights of the surviving spouse accrue in cases of intestate succession, meaning there is no will made by the deceased, and therefore the succession will be governed by the provisions set forth in the Civil Code of Catalonia. If there is a desire to establish specific property dispositions, having a will is important. Therefore, from our Private Law department, we offer the necessary advice.