inheritance domestic partner

Inheritance in a domestic partnership in Spain and the Basque Country

Lawyou — Wednesday, 24 de february de 2021

The inheritance rights of the domestic partner

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In this post we review how an inheritance is governed in a domestic partnership.

The Supreme Court defined in 1982 the figure of the domestic partnership also called“cohabitation more uxorio, as that which is developed in a living regime of daily coexistence, stable, with temporary permanence consolidated over the years, practiced externally and publicly with accredited joint actions of the interested parties.

The Supreme Court defined in 1982 the figure of the domestic partnership, as that which is developed in a living regime of daily coexistence, stable, with temporary permanence consolidated over the years, practiced in an external and public way with accredited joint actions of the interested parties.

In other words, it could be defined as the union of two persons, who live together with the intention of permanence without having contracted marriage, and to which certain legal effects are recognized. 

Unequal regulation in inheritance matters

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The Spanish Civil Code does not include the situation of domestic partnership as a civil status, and does not assimilate it to marriage.

There is therefore no state regulation on inheritance matters applicable to domestic partners, without consequently recognizing them the same inheritance rights as spouses.

Therefore, it is more complicated an inheritance in a domestic partnership.

As a consequence of the above, in the territories where the common law governs, as the Civil Code is applicable, domestic partners do not have recognized inheritance rights.

If we want our partner to be our heir, we must expressly establish it in the will, instituting him/her as such, (always respecting the limit of the legitimate in favor of the children of the deceased or the ascendants).

On the contrary some Autonomous Communities (such as Catalonia, Galicia, Basque Country or Balearic Islands), have developed their own rules regarding the recognition of the inheritance rights of unmarried couples, which generates a different treatment between the unmarried couples of the different territories or Communities, in application of the specific law in each case.We recommend that if you have a house with a mortgage in an inheritance read this other blog of the firm. Read it here

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Common law couples in the Basque Country.

The Basque Country is one of the Autonomous Communities that has a specific regulation on the inheritance in a domestic partnership and its inheritance rights, establishing in this regard, in the Law 5/2015, of June 25, of Basque Civil Law, that domestic partners will have the same consideration as married couples.

The law that defines and regulates this figure in the Basque Country is Law 2/2003, of May, regulating domestic partnerships.

The law that defines and regulates this figure in the Basque Country is Law 2/2003, of May 7, regulating unmarried couples.As the figures of marriage and unmarried couples are equated, in the Basque Country the following must be taken into account with regard to inheritance rights of the widowed spouse or unmarried partner:

-Thus in its article 52, Law 5/2015 establishes that the widowed spouse or surviving partner shall be entitled to the usufruct of half of all his or her assets of the deceased if he or she concurs with descendants or 2/3 in the absence of descendants.

-This rule also provides that the testator may dispose in favor of his spouse or common-law partner the universal usufruct of his property, although this legacy shall be incompatible with the legacy of the part of free disposal.

-This rule also provides that the testator may dispose in favor of his spouse or common-law partner the universal usufruct of his property, although this legacy shall be incompatible with the legacy of the part of free disposal.

-In addition, the widowed spouse or common-law partner is granted a right of habitation in the marital home as long as he/she remains widowed, or does not have another common-law partner.

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For the purposes of Law 2/2003, of 7 May, regulating unmarried couples, in relation to the inheritance regime and depending on the applicable foral Civil Law in each case, the unmarried couples may, in addition:

  1. Agreed that, upon the death of one of them, the other may keep in usufruct the totality of the common property.
  2. To jointly dispose of their property in a single instrument, by means of a joint or fraternal will, which may be revoked or modified by the members of the couple.
  3. To jointly dispose of their property in a single instrument, by means of a joint or fraternal will, which may be revoked or modified by the members of the couple.
  4. To reciprocally appoint each other commissioner in the will or succession agreement.

Do you need legal advice?

At Lawyou we have a professional team specialized in succession and inheritance and with the support of lawyers experts in Family Law

Do not hesitate to contact us by writing in the form below to tell us about your case. Or you can do it through our email atencionalcliente@lawyoulegal.com or, if you prefer, you can also call us on 602 226 895.

Si necesitas que revisemos tu herencia o testamento o si necesitas ayuda con temas de sucesiones, rellena el siguiente formulario.
 

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