The importance of making a will
It is no surprise to note that, with the Covid-19 pandemic, Spain is experiencing the worst health care situation of the last century. In the event of the death of a family member, and that this person has not made a will, the inheritance would be distributed according to the law, which can generate some disagreements between family members, highlighting that it can jeopardise the duration of the widowed spouse's stay in the family home. In these times, it is important to remember the importance of being prepared for everything, even for the most difficult situations, such as the death of a family member, which is why it is important to consider the idea of making a will, in order to avoid more problems than the situation itself generates.
The problems that can arise for the widowed spouse if a will is not made
The death of a relative triggers the process for the transfer of all obligations, rights and (of course) assets. If the deceased assigned his or her successors and the destination of his or her property during his or her lifetime, we will call this event "voluntary succession" or "testamentary succession". On the other hand, if the deceased did not name any successors, this is called "intestate succession" or "legal succession". In the latter case, the successors would receive the distribution according to the law. Define that the legitimate share is that which is reserved for the widowed spouse, together with the children and parents of the deceased. This reservation applies in the case of forced heirs. The widower is entitled to his or her reserved portion, as long as they remained married. If they are separated, he/she loses this right. The widowed spouse will receive one third of the inheritance in usufruct in case of having descendants, one half in case of not having descendants but having ascendants, and in case of the absence of both, two thirds of the inheritance in usufruct.
What disadvantages can arise in the absence of a will in relation to the family home?
The family home, in the event that the property was acquired in equal shares, half of the property plus the usufruct portion belongs to the widowed spouse. If, on the other hand, the sole ownership of the property belongs to the deceased, and the deceased dies without a will, the widowed spouse will only be entitled to the usufruct portion of the property. This would be a minority share if he or she shares the inheritance with the descendants of the deceased.
Normally, in the event of the deceased's death intestate, the family home would be retained by the children and the widow in accordance with the law and by way of inheritance. The aforementioned would be obliged to come to an understanding and agreement on the use of the property, as differences can arise if there are no good relations or if there is a different economic interest. This can lead, in the worst case, to the sale of the property, where the spouse would be forced to leave his or her home.
The necessity of making a will to guarantee the spouse the use of the family home in case of death
Normally, it has always been the will of the spouses that the other spouse should enjoy the assets of the inheritance when, unfortunately, one of them dies, especially the family home as it has been their home. In order to secure this claim, it is necessary to make a will. As mentioned above, if this is not the case, the widowed spouse would only be entitled to the usufruct portion granted by law.
Generally, the clause called "cautela socini" is used, meaning that the testator intends to ensure that his will is respected, favouring his spouse, by handing over the use and enjoyment of the inherited assets. In the event that one of the children does not accept it and asks for his or her share, he or she will only receive the strict legitimate share, i.e. one third of his or her father's or mother's inheritance.
In short, the will is made to secure the position of the widowed spouse in the inheritance so that the generated estate passes from one to the other and, subsequently, to the descendants. This prevents the occurrence of unfortunate circumstances, such as the "forced" abandonment of the widower's home due to disagreement with the children.
Translated with www.DeepL.com/Translator (free version)