USUFRUCTO DE DINERO, USUFRUCTO VIUDAL Y LEGÍTIMA DE LOS DESCENDIENTES.

Abstract

Regarding the usufruct of money under common law, a minor current of jurisprudence, pursuant to the criterion of a broad sector of doctrine, considers that the usufructuary is empowered to dispose of the money at issue however he wishes, without having to reach any arrangement with the owner as to the money's intended use, and without having to render any accounts to the owner or furnish any deposit save that which the constitutive title itself requires (which would be infrequent in the case of hereditary usufructs), with the ensuing lack of protection for the owner. All money subject to usufruct, used pursuant to its natural purpose, tends to vanish from the patrimony of the usufructuary, who becomes an owner at least as of the time when the money is consumed, such that the credit to be returned to the money's original owner (technically a mere creditor) is exigible only at the end of the usufruct. Effective collection will therefore depend upon the solvency of the usufructuary and his heirs. Now then, in the case of a widowed spouse's right of usufruct in the deceased spouse's estate, if there are common descendants of the deceased and the usufructuary widowed spouse, the credit to be returned will prove not to be exigible in the strict sense, not due to insolvency, but rather because it will have become legally extinguished by confusion, whereas said descendants are both the creditors and the debtors of said credit. In order for this consequence to take place -as it does with all money in the assets of the first-deceased spouse's estate that has been spent by the usufructuary widowed spouse, including the money forming part of the portion reserved for the descendants of the spouse who dies first- it suffices for the heirs of the usufructuary widowed spouse to be common descendants of said spouse and the predeceased spouse, which is exactly the most often-occurring case. Thus, the children or other descendants for whom a portion of the estate should be reserved may find their reserved portions affected seriously and irreversibly: with the definitive loss of all or part of the money forming part of their portion, to benefit the usufructuary spouse, without there necessarily being any bad faith or fraudulent intent attendant on the part of the predeceased spouse or the widowed spouse. Since no de lege data solution proves satisfactory, legislative reform would appear advisable, because the regulation in force in common law regarding money in usufruct does not guarantee the intangibility of the reserved portion or, in general, the rights of the owner. De lege ferenda, Catalan law could be taken as a reference point for future regulation, preferably pursuant to the criteria of Catalan Act 13/2000, now repealed.