Can the heirs in Spain force the surviving spouse to exchange the usufruct for other assets or money?.

Exchange the usufruct for other assets or money. inheritance

Inheritance proceedings are not always straightforward. Contentious inheritances. Disagreements between the heirs about the valuation of the assets and/or the distribution of the same. Will contestations. In this week’s article, we analyse the usufruct of the estate. And we answer the following question: Is it possible to force the widowed spouse to exchange the usufruct for other assets or capital?.

Widow’s usufruct. Rights of the surviving spouse.

Spanish law reserves a portion of the inheritance assets to certain individuals. These are known as forced heirs or legitimated heirs. A clear example is the widowed spouse. When he or she participates in the inheritance with the children of the deceased, the surviving espouse is entitled to the usufruct of 1/3 of the inheritance (art. 834 Spanish Civil Code).

What rights does the usufructuary have?.

The usufruct is the right of use, benefit and enjoyment that someone has over a certain asset, despite not being its owner. Thus, the usufruct on a property gives the right to live in it (or rent it and receive the rents). The usufruct on a bank account entitles to receive the interests. The usufruct of shares, to receive the dividends, etc.

Is it possible to exchange the usufruct for other assets?.

Yes. The legal justification for this possibility is foreseen in articles 839 and 840 of the Civil Code:

Article 839: “The heirs may satisfy the spouse’s share of usufruct by assigning him/her an annuity, the proceeds of certain assets, or a capital sum in cash, proceeding by mutual agreement and, failing that, by virtue of a court order.”

Article 840: “When the widowed spouse concurs with children only of the deceased, he may demand that his right of usufruct be satisfied, at the choice of the children, by assigning him a capital sum in cash or a lot of inherited property.”

In other words, in principle, it may be possible to exchange the widower’s right of usufruct for other assets in the inheritance, or for capital (money).

Doctrine and case law of the Supreme Court on the capitalisation of usufruct.

The case law of the Spanish’s Supreme Court understands that it could be possible for the heirs to oblige the spouse to capitalise his or her usufruct on the basis of the aforementioned articles. Ruling of October 25th, 2000, admits this faculty for “the heirs, whether voluntary or forced, testate or intestate, or even legatees affected by the legal usufruct of the widower, whether they are descendants, ascendants or collaterals of the deceased”. In any case, each case must be studied individually, as there is no unanimity in the doctrine.

Can the surviving spouse refuse to exchange the usufruct?.

We understand that refusal is not possible, since Article 839 contemplates the possibility of making this “change” without the widower’s agreement being necessary. However, both parties (widower and heirs) must jointly determine the value of the assets part of the inheritance. The heirs cannot impose the value on the spouse, and it is necessary that both parties agree about it.

How is the usufruct calculated?.

To calculate the usufruct value, the formula used is: 89 – age of the usufructuary. If the value of the state is €400,000.And the surviving spouse is 75 years old (89-75 = 14), the value of the usufruct of the spouse will be 14% of 400.000€.That is, €56,000.

And the children of the deceased, could exchange the usufruct of the widower, e.g. by assigning him/her an annuity, assets of this value, etc.


At White-Baos Lawyers, we are experts in Inheritance Law. If you would like to know more about this and other issues related to inheritance, wills, etc. please do not hesitate to contact us.

The information provided in this article is not intended as legal advice, but merely conveys information related to legal issues.

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185


White & Baos 2024 – All Rights Reserved.

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