The death of a spouse is a painful moment, but to that emotional burden we must add other legal and fiscal and that are the will and the testament and the inheritance. One of the most common mistakes in couples who have no offspring is to think that, if one of the two dies, the other will automatically inherit the entire house they have jointly with a joint mortgage, but nothing is further from reality. María Cristina Clemente, notary, explains it clearly: “In common law territory, if there are no children and there is no will, the heirs are the parents of the deceased along with the widowed spouse, who will only be entitled to the usufruct of half of the inheritance.”
To understand it, this means that shared housing can be divided between the in -laws and the couple of the deceased, which can lead to a family conflict.
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A simple testament that avoids family conflicts
The notary explains that the situation changes a lot if a will and this is granted in it. In that case, in -laws can only claim their legitimate (the minimum part of the inheritance that the law mandatory to certain relatives), equivalent to a third of the inheritance, while the rest can be left in full property to the widowed spouse. In this way, the widower or widow can keep the house as part of the inheritance, ensuring their protection and avoiding having to share the property with the in -laws.
“Granting will before a notary not only allows you to plan fairly, but also adapt the succession to the reality of each couple,” explains Clemente, who emphasizes that a simple procedure can in the future we save many problems, not only legal, but also emotional.
A mortgaged housing also tributes as an inheritance
Beyond the issues of distribution, the fiscal aspect cannot be forgotten and that, according to the Regulation of the Inheritance and Donations Tax (under Royal Decree 1629/1991 and that can be consulted in this Official State Gazette), all “mortis transmission” or rather, every time someone inherits a good or a right, it has to pay the inheritance tax, unless there are discounts or advantages according to the Autonomous Community.
Article 11 of the Regulation establishes that “all the assets that belong to the deceased in the year prior to his death are part of the inheritance,” except evidence to the contrary. The house, even with a pending mortgage, is integrated into the hereditary flow and is valued in accordance with its real market value, discounting in its case the pending mortgage debt.
The widowed spouse who receives property in property or in usufruct must liquidate the tax within six months from the date of death, with the possibility of requesting extension if requested within the first five. The regulations contemplate specific reductions for the supervious spouse, which can be a notable reduction of the quota, but in any case it is mandatory to present the declaration.
Avoid problems
To finish the video, the notary explains that if we do not do a succession planning, the distribution of shared housing between in -laws and a widowed spouse can generate fiscal problems to which to add the tensions by the cast. Thus, the testament is the most effective tool to avoid it and ensure that the will of the deceased is fulfilled, thus respecting the legitimate of the ascendants.
To all this, we must not forget the obligation to comply with the Treasury, since as indicated by the Law on Succession and Donations Tax, hide goods or not to liquidate correctly can lead to sanctions that range between 50% and 150% of the tax debt.