What is the widow’s usufruct? When a person dies, Spanish law reserves the widow’s usufruct to the widowed spouse which corresponds to them as a legitimate right. This gives them the right to enjoy their assets, even if the owners are their children, descendants or whoever corresponds to them in the line of succession. At Stelae we will tell you what the widow's usufruct consists of and how it is calculated, as well as looking at the different situations that may arise when one of the two people in a marriage dies.
What is the widow’s usufruct?
Usufruct is the right to use and enjoy another person's property so the usufructuary is the person who possesses the property, but does not own it. They can use the property and enjoy its benefits, but they cannot freely dispose of it, and they cannot, for example, make changes to it that affect its essence.
When we speak of widow's usufruct, we refer to the use and enjoyment corresponding to the widowed spouse. It refers to the part of the inheritance that corresponds to a person when their spouse dies, as a legitimate right.
When a person is widowed, they are entitled to receive a share of the inheritance, but, unlike the heirs, the surviving spouse inherits the usufruct but not the property or rights in ownership. This means that they cannot dispose of or mortgage these assets because they are only entitled to their use and enjoyment.
This right is guaranteed by law and is the minimum that the widowed spouse has over the inheritance. However, it is also associated with different obligations, such as the maintenance of the inherited property and the payment of the expenses derived from its use, which is why the Civil Code can contemplate the possibility of renouncing the widow's usufruct.
Calculation of the widow’s usufruct
The widow's usufruct is for life, meaning that the widowed spouse can make use of these assets until their death. With this in mind, how is the widow’s usufruct valued?
The age of the widowed spouse at the time of the death of their partner must be taken into account. Based on this, the calculation of the widow's usufruct, according to the current regulations, is as follows: the value of the usufruct is equal to 70% of the value of the property when the widow is 19 years old or less. From that age, the percentage is reduced by 1% per year to a minimum of 10%.
Another way of calculating the widow's usufruct percentage is to subtract the widow's age from the number 89.
Example of a widow’s usufruct calculation
In order to calculate the widow’s usufruct that corresponds to a person when their spouse dies, we can look at an example that will help us to clear up any doubts.
As we have said, the basis of the widow's usufruct is 89 minus the age of the person when they become a widow. Let's imagine that this age is 69 years, so the percentage of widow's usufruct would be 20%.
89- 69= 20
Let us assume, in this case, that the inheritance amounts to 300,000 euros. We might think that the widowed person would be entitled to 20% of that amount, i.e. 60,000 euros. However, there are other variables to take into account, which are also established by law to calculate the widow's usufruct in money.
Widow’s usufruct with a will
When we talk about widow's usufruct, we must take into account that we are referring to the part of the assets that corresponded to the deceased person. If the marriage had a community of property regime, we would be talking about half of the common property, as the half that is owned by the surviving spouse continues to be theirs to all intents and purposes.
Of the other half owned by the deceased, there is a part that the widow's spouse obtains as widow's usufruct, which is the percentage of the third of improvement that corresponds to them, based on their age.
However, if there is no will, the surviving spouse is only entitled to the widow's usufruct of one third of the estate, which would leave them very unprotected. This is why it is always recommended to make a will in order to make the last wishes as clear as possible (e.g. when cremation is chosen and recorded). This saves the inheritors a great deal of trouble and protects the widowed spouse, in other words, there is no need for mathematical formulae to calculate the widow's usufruct in a will.
Furthermore, it should be clarified that in cases of separation, unless the ex-spouse is expressly included in the will, separated or divorced spouses are not entitled to the widow's usufruct. Nor are there any inheritance rights for couples in a civil partnership.
Widow’s usufruct without a will
According to the law, the inheritance of a deceased person must be divided into three parts in the absence of a will:
- The children of the deceased are entitled to one third of the estate.
- The third of the estate is the amount on which the widow's usufruct is calculated.
- The third of the estate that the testator is free to dispose of as they wish also corresponds to the children in the absence of no will.
In this case, a third of 300,000 euros would be 100,000 euros. To that, 20% is calculated, which gives a total of 20,000 euros. And that would be the widow's usufruct without a will. The rest (280,000 euros) would go to the children or legitimate heirs of the deceased.
Other important aspects must also be taken into account. For example: whether or not there are children in the marriage. If there are not any children, but their relatives are still living, the widow or widower is entitled to the widow's usufruct of half of the inheritance. If there are no ascendants or descendants, the widowed spouse is entitled to two thirds of the deceased's inheritance.
