The Socini Clause has, primarily, two uses in drafting a will and dividing an estate
Author: Alejandro Perdigones

Source: tododisca.com

The Socini Clause is a fairly common provision in wills, although it is not widely known among the public. Through this testamentary clause, the testator can grant heirs a value exceeding their legal share, provided a condition or prohibition is met. More broadly, the Socini Clause represents any type of sanction imposed by the testator on any beneficiary of the inheritance.

It is important to note that the “legítima” is the portion of the inheritance reserved by law for compulsory heirs. Thus, the testator must always respect the legítima in the will, as determined by Spanish legislation.

A key point is that the Civil Code does not specifically regulate the Socini Clause. However, case law from the Supreme Court does validate the Socini Clause. Specifically, the Supreme Court determines that it affects the legitimaries’ right to choose between:

1. Accepting the will’s provisions and receiving a value greater than their legal share.
2. Rejecting the testamentary provision and receiving only the portion that exclusively belongs to their strict legal share.

Thus, the legitimaries have the option to take legal action to defend their strict legal share, even knowing that they will forfeit the rest of what the testator has stipulated in the will.

Uses of the Socini Clause in a Will

Legal professionals from ‘Lawyers and Inheritances’ explain the uses of the Socini Clause in a will. Specifically, it is used to extend the usufruct of the surviving spouse and to prohibit legal actions.

Through the Socini Clause in a will, the testator can grant the surviving spouse universal and lifelong usufruct of the entire estate. This is done without the need to make an inventory or provide a guarantee. The goal is to allow the surviving spouse to enjoy all the assets for their entire life.

At the same time, this clause grants the children more than their legal share to ensure they respect the surviving spouse’s universal usufruct. The children will have the naked ownership of the assets, which will transfer to them upon the surviving spouse’s death.

‘Lawyers and Inheritances’ clarify that “if none of the children respect the universal and lifelong usufruct of the surviving spouse, they will receive only the strict legal share. In this case, the testator usually grants the surviving spouse the free disposal third and the usufruct of the improvement third.”

Another function of the Socini Clause in a will is to prohibit going to court. In other words, the testator has the authority to impose this restriction on the heirs and legatees.

In summary, through the Socini Clause, the testator can establish a prohibition on the heirs from pursuing judicial means to resolve issues related to the division of the estate.