What a surviving spouse inherits under Spanish law

Terms used

• Usufruct — The usufruct is the right to use an asset and take its income, without owning it.
• Legítima — The legítima is the share of an estate that the law reserves for children and cannot be removed by a will.
• Gananciales — Gananciales is the marriage regime where assets acquired during the marriage are shared half and half.
• Separación de bienes — Separación de bienes is the marriage regime where each spouse owns only what is in their own name.
• Cautela socini — The cautela socini is a will clause letting children accept the spouse's usufruct or take only their strict share.
• Vecindad civil — The vecindad civil is your regional civil status, which decides whether Civil Code or regional inheritance law applies to you.

Key rules

• Spouse's right: Under the Civil Code a surviving spouse gets a usufruct, not full ownership, unless there are no descendants or ascendants.
• Children's shares: Children keep protected shares that a will cannot override, and the size depends on the region.
• Marriage regime: The couple's property is divided first, so gananciales and separación de bienes give the survivor very different totals.
• Foreign nationals: You may be able to choose your national law, which changes these rules.
• Professional drafting: Have a notary or lawyer draft any protection for a spouse or stepchildren.

The short answer

Your spouse does not automatically inherit everything. Under the standard national rules, a surviving spouse gets a usufruct: the right to live in or use assets and take the income from them, while ownership goes to others, usually the children. Children keep protected shares (the legítima) that a will cannot remove.

The exact share depends on two things: your marriage property regime and the region whose law applies to you.

Step one: the marriage regime is settled first

Before anyone inherits, the couple's shared property is divided.

• Gananciales (the default in most regions under the Civil Code): everything acquired during the marriage is split in half. The survivor keeps their half. The deceased's half, plus their private property (owned before the marriage, or received as a gift or inheritance), forms the estate.
• Separación de bienes (the default in Catalonia, the Balearic Islands and in some cases Valencia): each spouse owns what is in their name. The survivor gets nothing on this step, and only the deceased's own assets form the estate.

So under gananciales, your spouse ends up with half plus their succession share. Under separation, only the succession share. A spouse married under separation still inherits.

Couples from abroad may be under a different regime. This applies to marriages from 29 January 2019. Ask a notary which regime governs you.

Step two: the spouse's share under the Civil Code

These rules apply in regions that follow the Civil Code.

• With children or descendants: the spouse gets the usufruct of one third of the estate (the betterment third).
• With parents or grandparents only: the usufruct of one half.
• With neither: the usufruct of two thirds.

With no will, descendants inherit first and the spouse takes a usufruct share. If there are no descendants, ascendants inherit and the spouse takes the usufruct of one half. If there are neither, the spouse inherits the whole estate, ahead of siblings and other relatives.

A legally separated spouse loses these rights. De facto separation can also do so, depending on the case.

Regions with their own rules

Catalonia, Aragon, Navarre, the Basque Country, Galicia and the Balearic Islands have their own civil law. Valencia does in a more limited way. Which law applies to you depends on your regional civil status (vecindad civil), not simply where you live. In outline:

• Catalonia: children's protected share is one quarter, and the spouse has a usufruct over the home and in some cases a quarter.
• Aragon: the spouse has a usufruct over the whole estate.
• Navarre: children have no mandatory share, and the survivor has a usufruct.
• Basque Country: children's share is one third, and the spouse has a usufruct.
• Balearic Islands: children's share is one third in Mallorca and Menorca, or one half with four or more children. Ibiza is similar.

Percentages change with reforms, so confirm the current figure in the regional law with a notary.

Protecting a spouse when there are children from an earlier relationship

Children from a previous relationship keep their protected share, which is two thirds of the estate under Civil Code rules. A will can still do a lot:

• Leave your spouse the free third in full ownership.
• Leave the betterment third to the children, subject to the spouse's usufruct.
• Give your spouse the usufruct of the whole estate with a Socini clause (cautela socini). The children then choose: accept the spouse's usufruct, or take only their strict protected share and lose the free third. This discourages challenges.
• Where your region allows it, name your spouse to distribute assets among the children.
• Use life insurance, and remember your spouse's half under gananciales.

Which of these work depends on the law and region that apply, so have a notary or lawyer draft them.

If you are a foreign national

You can choose your national law to govern your inheritance. That changes everything above, including the children's protected shares. The choice and its trade-offs are in the decision below, and common questions are in the FAQ.

Choosing between options

Which rules decide what your surviving spouse gets?

• Civil Code rules: Your estate falls under the common rules. The spouse gets a usufruct, not ownership: one third of the estate with children, one half with only parents or grandparents, and two thirds with neither.

• Regional civil law: You have regional civil status in Catalonia, Aragon, Navarre, the Basque Country, Galicia or the Balearic Islands. The spouse usually gets a usufruct, but its size and the children's share differ by region. In Aragon it covers the whole estate.

• Choose your national law: You are a foreign national and your national law suits your family better. Say so in your will, as it changes all these rules.

Start with your region's civil status and your marriage regime. Gananciales gives the survivor half of the shared assets first, while separación de bienes gives nothing at that step. Children always keep their protected shares, so the spouse's rights come out of what is left.

Frequently asked questions

Does a spouse married under separación de bienes still inherit?

Yes, a spouse under separación de bienes still inherits, but only through succession rights. Under this regime each spouse owns what is in their name, so the survivor gets no half share first. Under gananciales the survivor keeps half of the shared assets and then adds the succession share.

Can a spouse lose their inheritance rights?

Yes, a spouse who is legally separated loses these rights, and in some cases de facto separation does too. A spouse in this position should ask a notary or lawyer how their situation is treated.

What is the Socini clause for a spouse with stepchildren?

The Socini clause (cautela socini) lets a will give the spouse the usufruct of the whole estate while giving the children a choice. They can accept that usufruct, or take only their strict forced share and lose the free third. This discourages challenges, and a notary or lawyer must draft it.

Do the Civil Code spouse rules apply if I live in Catalonia or Galicia?

No, Catalonia, Galicia, Aragon, Navarre, the Basque Country and the Balearic Islands have their own rules for people with regional civil status (vecindad civil). In Aragon the widow has a usufruct over the whole estate, while in Navarre there is no mandatory share for children. A foreign national may also choose their national law, which changes these rules.