How is the inheritance divided between widow and children?

It is one of the saddest moments in life, but we all have to consider, at some point, the death of our father. And, at this moment of absolute sadness and dismay, a question may come to mind: What corresponds to each heir? How is it divided between the widowed couple and the children?

In this article we want to answer the most common questions about the distribution of an inheritance, among others:

• Distribution of inheritance with or without a will
• How an inheritance without a will is divided between widow and children
• What is the inheritance of children if one of the parents dies?
• How is the distribution of inheritance in community of property in a marriage with children?

Existence (or not) of a will

If there is a will, the will must be followed and the assets, rights and obligations must be distributed in the way the deceased had intended. Any will must respect the reserved share, the portion of assets that the testator has to reserve by law for the forced heirs. According to article 807 of the Civil Code, these heirs are:

• Children and descendants with respect to their parents and ascendants.
• In the absence of the foregoing, the parents and ascendants with respect to their children and descendants.
• The widow or widower in the manner and to the extent established by this Code.

It is possible that the existence of a will is unknown, so the General Register of Last Wills and Testaments, where all wills made by a person can be found, should be consulted. The Registro General de Seguros de Vida por fallecimiento can also be useful, as it will show whether the deceased had contracts in force.

If there is no will, which is usually the case, it is the law that defines the heirs and the portion of the inheritance that corresponds to each one, which is known as intestate succession. The inheritance is not binding and can be accepted or not during a period of 30 days.

Compulsory heirs and inheritance without a will

In the case of forced heirs and without a will, the inheritance must be divided into three equal parts:

1. First of all, the aforementioned legitimate inheritance, which is divided equally between children and descendants in equal shares. Those of a closer degree disqualify the inheritance of those of a more distant degree. In other words: a son will inherit and a grandson will not, but if the son is dead, it will be the grandson who inherits.
2. Secondly, the improvement, which is divided between children and descendants, but not necessarily in equal shares, but to improve what has been received by one or more of the forced heirs.
3. Lastly, the third of free disposition, where the testator may leave it to another person, whether a relative or not.

As for the widowed partner, he/she will be entitled to the usufruct of the third destined for improvement, in addition to receiving the household goods of the common dwelling and the right of use of the dwelling, in the case of being married in community of property. In the event of concurrence with other relatives of the deceased, the widow would be entitled to half of the inheritance. If there are no ascendants or descendants, she would have full control of all the deceased spouse's property.

Types of partition of inheritance

There are different ways in which this partition, which signifies the end of the procedure initiating the death, can take place:

• Carried out by the testator: according to the will left by the deceased, provided that the legitimate rights of the children and widow or widower are respected.
• By the accountant-partitioner: according to the will left by the deceased, an accountant-partitioner is commissioned by the testator to carry out the partition of his inheritance after interpreting his will.
• By the heirs: Without a will or accountant-partidor, the heirs can distribute the inheritance as they see fit.
• Practised judicially: if the heirs do not reach an agreement on the partition, any of them may carry out the procedure for the judicial division of the inheritance.

If you have more doubts about this process, or you want to make your will, do not hesitate: contact us, our expert lawyers in Inheritance in Madrid will advise you and guide you to the best solution.