How should a married couple with children make their wills in Catalonia?

Question

José Manuel Alburquerque · Accepted Answer

Each spouse makes their own will, because a joint will cannot be made in Catalonia, although the usual practice is to sign them on the same day before the same notary. The most common arrangement is for each spouse to appoint the other as heir and, if the other dies first, the children, who keep their forced share (“legítima”). Other options are to leave the surviving spouse the usufruct of everything and the children the ownership, or to entrust the surviving spouse with choosing later which of the children inherits. It is also advisable to appoint a guardian for the minor children. The most common arrangements The other spouse as heir to everything, with the children as substitutes. The children keep their forced share, a quarter of the estate between them. While their father or mother is alive, the time limit for claiming it does not run. It is advisable for the will to state that the forced share does not bear interest. If it does not, the forced share bears interest from the death, except while the child lives with the surviving spouse and is dependent on them. The usufruct of the whole estate for the surviving spouse and the ownership for the children. The surviving spouse uses the assets and collects the income from them, but cannot sell them without the children. As the forced share cannot be burdened, each child can choose between accepting this arrangement and taking only their forced share, free of the usufruct. The power to choose. The will entrusts the surviving spouse with choosing later, from among the children, who inherits and in what proportion. It is useful when the children are young or there is a family business. A succession agreement between the two of them, which, unlike a will, cannot be changed at the wish of just one of them. What it is advisable to add A guardian for the minor children, in case both parents die. Also someone to manage what they inherit until they come of age. Separation. Whatever was left to the other spouse ceases to have effect if they later separate, even if only de facto, or divorce, unless they are reconciled or it is clear that it would have been left to them anyway. Even so, it is advisable to make a new will. This makes it possible to change the substitutes and the guardian and to entrust the management of what the minor children inherit to someone other than the other parent. A review when a child is born, the home is bought or sold or the family situation changes. Making a new will costs little. What does not apply in Catalonia The “tercio de mejora” or betterment third and the surviving spouse's forced share in usufruct, which are features of the Spanish Civil Code (“Código Civil”), do not apply if the estate is governed by Catalan law. Nor is a joint will valid. The Spanish Civil Code also prohibits it and only some regional civil laws, such as those of Aragon and Navarre, allow it. They appear in many templates from other autonomous communities and are misleading. For the “impuesto de sucesiones”, the Spanish inheritance tax, the surviving spouse has a 99 % tax credit and each child deducts at least 100.000 euros, so in ordinary estates little tax is usually paid.