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Testaments in Spain: The divorce clause

In the first place, we must emphasize the importance of granting a testament because it supposes to represent in a public document the will of one with respect to the assets and rights of which it is owner and holder. It’s necessary to consider that if the will of each person is clearly ensured in a testament, the day of tomorrow will enormously facilitate those interested in the succession all the necessary processing for the acceptance of the inheritance in question. 

Although it would not be correct to generalize, the usual clause that is usually established in the majority of testaments celebrated in Spain is the following one:

"Delegate the legitimate one to whom it corresponds and institute universal free heirs, in equal parts, to your children, replaced in case of premortality or in case they did not want or could not inherit, by their respective descendants entitled to increase among them."

But at this point we must keep in mind that the testator (the person who makes the will) may be a person who in his day dissolved his marriage by divorce and for this reason he wants to include, in addition to the above, a clause that implies that their children and heirs can NOT leave in inheritance to the other parent and ex-spouse any benefit they have received on their part, being that the legislation on inheritances in Spain allows it.

Before we continue, we must differentiate between the fact that the heirs had granted a testament of those who had not done and therefore intestate succession was considered, being that although we indicate below the basis of the stipulations to indicate in our last testament, it is more than advisable to consult with a lawyer properly as each case is particular and different from the other.

Thus, the two assumptions that may occur are:

1) If the heirs have made or made a will, the provision that should be included in the will of the owner of the property would be the following:

"It expressly prohibits his heirs from disposing of the assets of this inheritance, either by inter vivos acts or by acts mortis causa, both for consideration and free of charge, in favor of Mr. XXXX, his spouse or stable partner and any relative within the fourth degree of consanguinity or affinity of Mr. XXXX, except for the descendants of the testator instituted previously.

If the disposition mortis causa of the heirs is of a universal character, then the inherited property of the testator and the surrogates, will pass to the previously mentioned substitutes. "

2) If the heirs did not grant a testament and had to carry out the intestate succession of these, the clause to be included would be the following:

"If the children die without a testament by instituting heirs, without having disposed of the inherited property of the testator, without descendants and without a spouse or stable partner, fulfilling all these conditions, a preventive substitution of residue is established on the remainder and surrogates of the assets and rights that they had inherited from him, which they would not have consumed, and from those who had not disposed by inter vivos acts, that will pass to the surviving son of the testator, replaced at the same time by his descendants "

In this way and as we can see, it is possible to protect our assets and rights even after death, in order for them to remain in our family and do not become part of the heritage of the ex-spouse with whom no longer shares a life in common, all complying with the formalities required by Spanish legislation in this regard.


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