Some couples, despite having children, decide to create a will in which they bequeath all their assets to each other.

Author: Lidia Orellana

Source: tododisca.com

A will is a legal act through which a person stipulates who will inherit their assets upon their death. However, this process is more complex than it seems. The testator does not have absolute freedom to distribute their assets because, by law, there are forced heirs with succession rights.

These forced heirs, whether or not there is a will, are defined by law as follows: First, the descendants of the deceased. In their absence, the ascendants. Third, if neither of the above exist, the spouse. If the deceased has no family and has not made a will, the assets will go to the State.

So, what is a ‘one for the other’ will? This term refers to a will between spouses. In such cases, what often happens is that in their respective wills, they bequeath to each other the lifelong usufruct of all their assets.

Can I Leave All My Assets to My Spouse in My Will?

Sometimes, a couple, despite having descendants, decides they want to make a will to leave everything to each other. In Spain, where Common Law applies, it is impossible to bequeath all your assets solely to your spouse through a will. Instead, it is common to bequeath the universal and lifelong usufruct of all assets to each other.

It is important to note that usufruct refers to the right to use and enjoy certain assets. The usufructuary is not the owner of the asset, but can use it and benefit from any fruits it may produce during their lifetime. However, they cannot transfer ownership, as it belongs to the heirs.

Therefore, if you want to create a will colloquially referred to as ‘one for the other,’ you should use the concept of universal and lifelong usufruct. This allows the spouse to use all the assets, but they must maintain them in good condition, as the ownership, even while the usufructuary enjoys it, remains with the forced heirs.

Typically, to implement this universal and lifelong usufruct, what is done is to improve what the forced heirs will receive. In other words, beyond the legitimate portion, the improvement and free disposal thirds are used to enhance the inheritance that will be passed to them after the usufructuary’s death. Indeed, if any of the heirs refuse to allow the spouse to receive this universal and lifelong usufruct after the testator’s death, they will only receive the strict legitimate portion.