Author: A. Gil

Source: La Información

Wills are legal documents that must meet certain requirements or conditions to be valid. Although they might seem like straightforward paperwork to organize things among existing heirs, they can also contain clauses, conditions, or requirements that are not widely known, even if they are common.

For example, a clause that often appears in wills but is unfamiliar to those not well-versed in civil law is the Socini clause. This clause can be understood as a condition or sanction imposed by the testator, the person drafting the will, on the heirs or any other beneficiaries of the inheritance.

It is a testamentary clause by which the testator can leave the heirs a value greater than their legitimate inheritance, provided a condition or prohibition is met. This understanding comes from law firms and notaries since the Civil Code does not regulate it as a mechanism.

How the Socini Clause is Used

How do you know when and how to use the Socini clause? Thanks to jurisprudence, the Supreme Court’s rulings determine that if this clause exists in the will, the forced heirs can either accept the will’s provision and receive a value greater than their legitimate inheritance or reject this testamentary provision and receive the part that exclusively belongs to the strict legitimate share.

In these terms, it is important to remember that the legitimate inheritance is the portion reserved by law for the forced heirs and must always be respected unless some are explicitly disinherited (you can check the cases here).

The Two Functions of the Socini Clause

Thus, the first function of the Socini clause is to allow another person to enjoy the estate until it is the forced heirs’ turn to take charge of these assets. This condition must be clearly drafted or reflected in the will so that its wording and application are clear to all recipients of the will.

For example, if the testator has a spouse who survives them, the testator can draft a clause allowing their partner, on the condition of making an inventory of the assets and providing a guarantee, to have the universal usufruct of the assets until their death. In exchange for allowing the spouse to dispose of the assets, the legitimate heirs will receive, upon the spouse’s death, a greater part of the inheritance than they would have received as their legitimate share.

The second function of the Socini clause in a will is to prohibit the heirs or usufructuaries from going to court. The testator can impose this on the heirs and legatees to, through the Socini clause, establish a prohibition on the heirs from seeking judicial resolution for issues related to the partition of the inheritance.

Despite this condition, if any legitimate heirs feel that the distribution is not fair or do not agree to allow the surviving spouse to enjoy the assets, they always have the option to take legal action in their defense. However, they must understand that it will be a dispute over their strict legitimate inheritance, and as a consequence, they will lose the rest of the assets bequeathed to them in the will by breaking the Socini clause’s stipulation.