How is the estate divided if there are children from a previous marriage?

Question

José Manuel Alburquerque · Accepted Answer

Without a will, all the children inherit equally, whichever marriage they come from, including adopted children and those born outside marriage. The current spouse or stable partner (“pareja estable”, Catalan stable partnership) also has the usufruct of the whole estate. This often causes conflict with the children of the first marriage, who may have to wait many years to enjoy what they inherit. With a will, more can be left to some children than to others, but all of them are entitled to their forced share (“legítima”). A former spouse does not inherit unless a will made after the divorce leaves them something. Without a will The children share the estate equally, regardless of which marriage they come from. If a child died first, their own children take their place. The current spouse or stable partner has the usufruct of the whole estate for life. They can live in the house and collect the income from everything, while the children are owners without being able to enjoy the assets. Within a year of the death, the surviving spouse or partner can exchange that usufruct for outright ownership of a quarter of the estate plus the usufruct of the family home. The decision is theirs alone, although it is often negotiated with the children. A divorced former spouse does not inherit. Nor does a spouse from whom the deceased was separated, even if only de facto, or a spouse with whom separation, divorce or annulment proceedings were pending. This applies if the estate is governed by Catalan law. Under the Spanish Civil Code (“Código Civil”), the surviving spouse only has the usufruct of one third and an unmarried partner does not inherit without a will. With a will The estate can be divided as the testator wishes, respecting the children's forced share. The forced share is a quarter of the value of the estate and is divided among all of them. To calculate it, what the deceased gave away in the ten years before their death is added, including gifts to the current spouse. It is possible to leave more to the children of one marriage than to those of the other or to appoint the current spouse as heir. If the heir is the current spouse, the children of the first marriage can claim their forced share from them within ten years of the death. For the children the couple had together, that time limit does not run while the heir, who is their father or mother, is alive. For those of the first marriage, it does. A common arrangement is to leave the current spouse the usufruct of the home and the children ownership of everything. Another is to leave each of them specific assets, so that the children and the current spouse do not end up owning the same things. If the will leaves everything to the children, a surviving spouse or stable partner without sufficient means can claim what they need, up to a quarter of the estate. The spouse's children Children that the spouse or partner has from another relationship do not inherit without a will, even if they grew up with the deceased. If the will leaves them something, they pay the “impuesto de sucesiones”, the Spanish inheritance tax, as if they were the deceased's own children. This tax rule applies if the deceased spent more days in Catalonia than in any other autonomous community over the last five years.