CONCURRENCIA DE HIJOS DE ANTERIOR MATRIMONIO Y CÓNYUGE SUPÉRSTITE EN LA SUCESIÓN INTESTADA.

Abstract

Where children of a prior marriage and a surviving spouse are concomitant in intestate or ab intestato succession, the widowed spouse is to be considered, stricto sensu, entitled to a legitime (i.e., a fixed portion of the estate under art. 807 of the Spanish Civil Code) but is not an heir in the true sense of the word or a successor in universum jus. As a consequence, if the surviving spouse was not declared an heir in a will, then the surviving spouse, in his or her capacity as a person entitled to a legitime, has the right only to the usufruct of one third of the estate, namely that third that may be apportioned at will to any or all of the lawful heirs. Furthermore, the legal share under usufruct may be commuted simply at the heirs' initiative, although the widowed spouse has in his or her favour the general encumbrance on hereditary assets established by law in article 839 of the Code to guarantee payment of the spouse's legal share of the third of the estate stated above, as usufructuary. During the phase where the estate has not yet been divided or the community of heirs remains constant, the surviving spouse as a rule has no power whatsoever in connection with the as hereditario, as all acts of use, enjoyment and disposal in the technical sense are to be performed only by the heirs in the true sense.