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.
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 holds ownership "without the use" holds the bare ownership. When the usufruct ends (normally on the death of the surviving spouse), the bare owner comes to hold full ownership, without the need for a new inheritance.
How much the surviving spouse is entitled to
Under common civil law, the portion of the inheritance on which the surviving spouse's usufruct falls depends on who else takes part in the succession.
Usufruct of one third
If they take part alongside 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 is entitled to the usufruct of two thirds of the inheritance, the most protected position.
Commutation: exchanging the usufruct for something else
Sharing co-ownership (the surviving spouse as usufructuary and the children as bare owners of the same assets) frequently generates friction: neither can sell nor dispose freely. That is why the law allows the usufruct to be commuted, that is, replaced by mutual agreement with something else: a capital sum in money, a life annuity or the full ownership of certain assets. It is a very useful tool for undoing the co-ownership and avoiding future conflict.
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 regime of the widow's usufruct is one of the reasons why tying things up during your lifetime avoids conflict. Deciding in advance how it is arranged (keeping the usufruct, providing for its commutation, combining it with other figures) gives peace of mind to the spouse and clarity to the children. Along the same lines, it is worth assessing whether in each case it is more advantageous to gift during your lifetime or leave it in an inheritance.
At Equus Capital we advise families in Valencia on the division of inheritances involving a surviving spouse and on the planning that avoids conflict between widowhood and 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. They can continue living in the home 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 they take part alongside 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 by mutual agreement (replaced with money, an annuity or assets in ownership), 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 consolidates full ownership of the assets, without the need for a new inheritance or to pay for them again.