The most common will: “From one to the other, and then to the children”
The most common will: “From one to the other, and then to the children”
This will offers the certainty that while either of the spouses is alive, he or she will be entitled to live in the home and use the assets, and when both are no longer living, the property will be passed on to the children in equal shares, even if the widow or widower has remarried, since they will not be the owner, but a usufructuary. The system is colloquially known as 'from one to the other, and when both die, to the children'. And the fact is that this expression perfectly corresponds to the content of such a will. It is so simple, that it is no surprise that it is the model most commonly used by married couples drawing up a notarial will. Each of the spouses must draw up this will separately: they are individual documents.
The most typical case is of a married couple with children planning to make a will. The typical idea they would have is that the widow or widower should retain the greatest possible rights, and in particular be able to continue living in the home and making use of the assets during his or her life, after which they will be passed on in equal parts to the children.
The way to achieve this is for each of them to make a respective bequest of universal usufruct, in other words all assets owned by the deceased being attributed to the surviving spouse, while naming the children as heirs in equal parts.
This means that the widowed husband or wife can make use of and receive the revenue and yields from the assets of the two of them in life, which means for example that he or she is entitled to live in the home, without the children being able to refuse this. In the event of leases, the widow or widower will receive the rent and, in general, will benefit from all yields on any assets previously held by the two of them, but may under no circumstances sell anything that belonged to the deceased, unless all the children grant their consent. When the widowed parent dies, the children will receive the inheritance of both parents subject to no limitation.
The widowed parent will in all cases enjoy unrestricted rights over his or her half of the jointly owned properties (once the joint assets have been distributed between the latter and the children), since this half is not received as an inheritance from the deceased, but was owned prior to the death. The effects of the will are limited to the half of the joint assets corresponding to the deceased, plus his or her exclusive assets, in other words those that were in turn inherited, or received by donation, or those owned prior to marriage.
With this type of will, in order to avoid any possible detriment to the reserved portion of the children, what is known as the 'Socini safeguard' is included: if any of the children does not agree to the widowed father or mother receiving a usufruct over all assets (since a claim can always been made for a reserve portion applied strictly without any usufruct), that child will forfeit everything except the strictly applied reserved portion, in favour of all other siblings that do so accept. This offers greater guarantees to those children who respect the will of their parents.
The formula is very often supplemented by offering the widowed parent the option of receiving, instead of usufruct over all the assets, the maximum attribution possible by ownership, which under Spanish National Law would be one third. The widowed parent will consider, in accordance with his or her age and circumstances, whether he or she prefers a usufruct or would rather realise a portion of the inheritance in property, that can then be sold without recourse to the children.
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