The surviving spouse is a forced heir: the law reserves them a portion of the inheritance even where there is a will, just as with the reserved share of the forced heirs (legítima). But, unlike the children, what they are entitled to is usually not full ownership of the assets, but their usufruct.
In this article
What the usufruct (and bare ownership) is
The usufruct is the right to use an asset and receive its fruits without being its owner: to live in the home, to collect the rent it generates, to use the money. Whoever keeps ownership "without the use" is said to hold the bare ownership. When the usufruct ends (normally on the death of the surviving spouse), the bare owner becomes the full owner, with no need for a new inheritance.
How much the surviving spouse is entitled to
Under common civil law, the share of the inheritance that the surviving spouse's usufruct covers depends on who else inherits alongside them.
Usufruct of one third
If there are children or descendants, the surviving spouse is entitled to the usufruct of the betterment third (tercio de mejora) of the inheritance. The children receive the bare ownership of that portion and full ownership of the rest.
Usufruct of one half
If the deceased had no children but did have living parents or ascendants, the surviving spouse's usufruct is extended to half of the inheritance.
Usufruct of two thirds
Where there are neither descendants nor ascendants, the surviving spouse's forced share is the usufruct of two thirds of the inheritance. And if there is no will, they inherit everything in full ownership, unless they were separated.
Commutation: exchanging the usufruct for something else
Sharing the same assets (the surviving spouse as usufructuary and the children as bare owners) often causes friction: neither side can sell or dispose of them freely. That is why the law allows the usufruct to be commuted, that is, replaced with something else: a lump sum, a life annuity or full ownership of certain assets. It is done by mutual agreement or, failing that, by order of a judge. It is a way of undoing the shared arrangement and avoiding disputes later on.
The usufruct is valued according to the age of the usufructuary, and that valuation affects how Inheritance Tax is split between the surviving spouse and the children. Good succession planning during your lifetime can anticipate all of this in the will and avoid surprises.
Why it is worth planning
The widow's usufruct is one of the reasons to put your affairs in order during your lifetime. If you decide in advance how it will work (keeping the usufruct, providing for its commutation, combining it with other arrangements), your spouse has peace of mind and your children know where they stand. It is also worth looking at whether in your case it makes more sense to gift during your lifetime or leave it in an inheritance.
At Equus Capital we advise families in Valencia on dividing inheritances where there is a surviving spouse, and on planning ahead so there is no conflict between the surviving spouse and the descendants. First consultation free and with no obligation.
Frequently asked questions
Does the surviving spouse inherit the house?
Normally the surviving spouse inherits the usufruct (the right to use and enjoy the assets), not always full ownership. If their usufruct is placed on the home, because the will says so or it is agreed in the division, they can continue living in it or receive its income, while the bare ownership usually goes to the children.
How much is the surviving spouse entitled to if there are children?
Under common civil law, if there are children or descendants, the surviving spouse is entitled to the usufruct of the betterment third (tercio de mejora) of the inheritance. The children receive the bare ownership of that portion and full ownership of the rest.
Can the usufruct be taken away from the surviving spouse?
Not unilaterally: the surviving spouse is a forced heir and the law protects them. It can be commuted (replaced with money, an annuity or assets owned outright) by mutual agreement or, failing that, by order of a judge. And they can only be deprived of it on a legal ground for disinheritance.
What happens to the usufruct when the surviving spouse dies?
The usufruct ends on their death and the bare owner (usually the children) automatically becomes the full owner of the assets, with no need for a new inheritance. That consolidation does have to be declared for Inheritance Tax.