25 August 2017, Alberto Perez Cedillo

THE “SOCINI” CLAUSE

Under the Spanish Civil Code, the spouse of the deceased is entitled to the lifetime usufruct of a third of the inheritance (known as “betterment third”). The spouse has the exclusive right to use the property until their death, after which, the property passes down to the children of the testator. The spouse cannot change who the beneficiaries to the property are, and in turn, the children cannot forcefully remove the spouse from the estate.

Under the usufruct, the spouse has the duty to maintain and preserve the property, but is also entitled to collect and sell any products from the property, or rent it out. Under the Spanish Civil Code, only at the end of the usufruct the bare owner (the children) acquires full ownership of the property, the children also have the absolute title over a third of the estate immediately after the testator’s death, this third, known as the “legítima third”, must be split evenly amongst the children. After the death of the usufructuary, the children receive the “betterment third” as well; therefore, in total, they would possess ownership of ⅔ of the estate. The final third of the estate is not lawfully entitled to any party, and so the testator can will this portion of their estate to anyone they desire, in whatever portion they see fit.

Be aware of regional legislation as force heirship vary in some autonomous communities.

The “Socini” Clause allows the testator to leave to the heirs more than the statutory legacies (legítima), subject to withstanding the lifetime usufruct of the spouse widower on all the estate.

The Supreme Court declared the validity of the “Socini” clause on January 17th 2014 ,though it is not specifically regulated by the Civil Code.