LA SUCESIÓN DEL CÓNYUGE SEPARADO JUDICIALMENTE O DE HECHO, TRAS LA REFORMA POR LEY 15/2005, DE 8 DE JULIO.

Abstract

Act 15/2005 of 8 July amending the Civil Code and the Civil Procedure Act in matters of separation and divorce not only complied with its primordial purpose of ‘acknowledging greater significance as belonging to the wishes of the person when the person no longer wishes to continue bound to his or her spouse', but also mended the Civil Code's criticized lack of harmony in regulating the requirements needed in order for a widowed spouse to have succession rights ab intestato and rights in a legitime in the estate of his or her partner. As of 10 July 2005 (the date when the aforesaid act went into force), in order to enjoy rights in the succession of a predeceased spouse, the surviving spouse need not be separated legally or de facto from the deceased, in both cases notwithstanding the innocence or guilt of the survivor. Prior to the reform, legislation used to penalise a widowed spouse guilty of legal separation by giving said spouse no rights in a legitime, but the observance of guilt or innocence could not deprive the survivor of intestate rights. Act 15/2005 unified the conditions required for succession by the surviving spouse in regard to the spouse's share both via legitime and ab intestato, but although some problems of interpretation have thus been erased, problematic issues still remain. The difficulty will often shift onto how the fact of de facto separation itself, a largely fuzzy legal concept, is to be observed, and onto the requirements set by a new article of the Civil Code, article 84, in order for a possible reconciliation of the spouses to be effective.