What are the rights of widows and widowers?

When a person dies, he or she leaves behind a deep sentimental imprint and, in many cases, a financially unprotected partner. The break-up of the family unit for this reason can be very traumatic. This is the reason why Civil Law sets out a series of rights for the widow or widower that will assist him or her after the death of his or her partner. Here we are going to try to break down the most important ones.

What is understood by people in a situation of widowhood?

The first thing to say, before going any further, is that the Civil Code, except in the case of some autonomous communities such as Navarre or Catalonia, which have their own foral laws, does not contemplate that the common-law partner has inheritance rights. However, in the aforementioned regions, it is equivalent to marriage.

As they are not considered to have inheritance rights in the rest of Spain, in the event of the death of their partner, the assets will be inherited by the children and, if there are no children, by the parents. Nor are they recognised as forced heirs, which are those subjects on whom the legislation in force obliges them to dispose of a part of the inheritance without the testator having the possibility of depriving them of it.

In this sense, the spouse who enters into a situation of widowhood, who is the one who was married to the deceased, does form part of the forced heirs. Their rights may vary depending on who the other subjects of the same legal status are. 

The importance of making a living will

A will is the document in which a person leaves his or her will regarding the distribution of his or her assets after death. In this sense, the law does contemplate the possibility of a testator naming his or her unmarried partner as the universal heir of his or her assets, provided that he or she preserves the share that corresponds to the forced heirs, if there are any.

For example, if there are children in common between the partners, the widower may grant them one third of the inheritance. If there are no children but their parents are alive, half. On the other hand, if there are neither parents nor children, he/she can inherit the whole. This means that, in terms of rights, unmarried couples can be equated to married couples if a will is involved.

The widow's/widower's pension

There is no doubt that the introduction of the widow's pension in the catalogue of benefits provided by Social Security is one of the great achievements of recent decades. Another milestone reached more recently was the inclusion of unmarried couples in this entitlement.

It is necessary to prove that the couple was registered as unmarried partners in any of the regional or municipal registers authorised for this purpose two years or more prior to the death of the deceased. Likewise, it is also necessary to prove that there has been a stable cohabitation in a dwelling by means of a census registration certificate. In legal terms, the term 'stable' means that both have lived in the same dwelling uninterruptedly for the last five years or more.

It is also a 'sine qua non' requirement that the surviving party proves that his or her income during the year preceding the date of death of his or her partner was less than 50% of the sum of his or her own income and that of the deceased during the same period of time. 

What about divorced people?

It may seem strange to you, but there are cases where the law also provides for the right of a divorced or separated spouse to have access to a widow's or widower's pension when the other spouse dies. However, there are a number of requirements that must be met for this to happen.

Firstly, the law establishes that, in cases of separation or divorce, the surviving spouse is entitled to receive a widow's or widower's pension as long as he or she has not remarried another partner or registered as a common-law partner with another person in any official municipal or regional register.

It is also essential that these separated or divorced persons have a recognised right to receive a compensatory pension from their former partners. In general, the precepts underlying this point are to be found in Article 97 of the Civil Code.

This means, to put it more simply, that if the right to receive a compensatory pension was not specified, either by court judgement or separation or divorce agreement, the person concerned will not be entitled to receive the corresponding widow's or widower's pension. 

Recovery of the widow's/widower's pension

It should also be remembered that the widow's/widower's pension is a substitute for the compensatory pension, which can no longer be paid by the other spouse after the death of the other spouse. This means that the amount will be equivalent regardless of whether the calculation of the widow's/widower's pension resulted in a higher or lower amount.

The aim of all these measures is none other than to offer some financial compensation to widows and widowers who were receiving particularly low compensation from their former partners. 

What are the rights of widows and widowers with regard to the family home?

When one of the spouses dies while married in community of property, there are two different settlements. On the one hand, the community of acquisitions disappears, which means that half of the amount is paid into the inheritance and the other half is awarded to the widow. On the other hand, this half is divided as an inheritance.

At this point, among the most important rights of the widow or widower is, on the one hand, the right to request that the ownership of the family home be fully attributed to him or her and, on the other hand, to request that he or she be granted the right to use or inhabit it.

In this case, the surviving spouse has to pay the financial difference to the heirs if the value of the property or the right of use or habitation exceeds the value of the inheritance. This is provided that they request it.

What is the purpose of this provision? Fundamentally, to prevent the children, as forced heirs, from preventing the widowed person from continuing to live in the property once their spouse has died. Therefore, it can be said that they will have the possibility to keep the ownership of the property but not to leave the survivor without being able to use it.

This is broadly all you need to know about widowers' rights. Of course, the legislation is much more extensive and complex. We would therefore like to invite you to contact us if you have any further questions.