WE have already discussed in previous articles the importance of making a will and establishing clearly how you want to deal with your assets when you pass away. It simplifies the procedure of the inheritance for the heirs. Avoids having to file a Declaration of Heirs before the notary, etc. Today we address a question overlooked by many people and often asked by our clients. What happens to our Will after a divorce or separation? Is it advisable to grant a new one? Is there such a thing as a ‘will for divorcees’?
When a divorced person dies… does the ex-spouse have any rights to the inheritance?
Is there any legal obligation to leave something to the surviving ex-spouse? The answer is clear. No. Once the separation, annulment or divorce has been formalised, there is no legal obligation to include the former spouse in the Will.
What if the deceased spouse was included in the Will? Would he/she continue to be a beneficiary of the succession? According to the jurisprudence of the Supreme Court, not at all. Such a notorious change as a separation, divorce or annulment should be interpreted as sufficient to exclude the former spouse from the succession. However, to avoid unpleasant and difficult situations (such as the Notary having to demand a waiver to the ex-spouse) we always recommend our clients to grant a new Will after a divorce.
Custody, parental authority and the problematic administration of assets
There is another aspect that frequently worries people who have gone through a divorce, especially when the separation has not been amicable. That the surviving spouse may end up administering the property and money destined to the children.
Regardless of who had custody at the time of death, upon the decease of one parent, parental authority automatically passes to the other one. This means that the living parent will be responsible for the administration of the assets destined to the descendants for the duration of their childhood. That spouse will have access to the bank accounts. Will be able to rent the real estate and collect the income. He/she could even sell the real estate left to the children and spend the money, without too much difficulty (although the sale would require a judicial authorisation that it is often granted). In this scenario, is there any legal way to protect the inheritance of the children and ensure that it will not be squandered by the surviving ex-spouse?
The figure of the administrator in Art. 205 of the Civil Code
The law foresees a figure that, indirectly, prevents the former spouse from administering the assets destined to the children. We are referring to the stipulation contained in Art. 205 of the Spanish Civil Code (in connection with Art. 164). The testator can appoint a person of his/her utmost confidence (a brother, a close friend, a relative, etc) to administer the assets upon his/her death. In this way, it would be the person chosen by the deceased, and not the other parent, who would oversee the estate inherited until the minors reach the majority of age. However, in this scenario, it is very important to specify the functions attributed to the administrator in as much detail as possible.
If you have recently divorced or separated, we would strongly suggest you grant a new Will. Please do not hesitate to contact us. We will study your case and offer you expert advice to ensure your wishes are expressed in the clearest and most efficient way possible, to be certain that your assets are passed on to your children in the conditions that you desire.
The information provided in this article is not intended to be legal advice, but merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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