GRANTING BETWEEN SPOUSES THE POWER TO IMPROVE THE CHILDREN'S INHERITANCE
Article 831 of the Civil Code according to the wording given by Law 4/2003 of November 18, on the protection of the assets of people with disabilities. Although the spirit of the 2003 reform was to consider the special situation of these heirs, the reality is that the final wording of the article contains no such mention.
Nevertheless, the evolution of society and the new structure of families have led to a modification that was already significant in 1981 due to the evolution of our society. Increasingly, widows or widowers with non-common children, that is, children from the deceased's first marriage, or during the marriage, with common children with the widow or widower from the second marriage, are inheriting. This power actually allows for a testament to grant that upon the death of the granting spouse, the surviving spouse who has not remarried may, at their prudent discretion, distribute the deceased's assets and improve them for the common children, without prejudice to the legal portions and other provisions of the will.
Law 4/2003 went a step further and no longer requires that the grantor or testator be married to the favored person, only that they have common descendants. The legal term is extended from one year to two years to execute this power to improve the common descendants (unless a longer term or any other condition is set in the will). A distinction is made between common and non-common descendants, and it is even allowed after the reform that the favored person may remarry or enter into a similar relationship or have other children, but this must be clearly stated in the will, something that was completely excluded in the 1981 wording.
What are the actual powers contemplated by this article 831, or how are they translated? They include making improvements, even with charge to the freely disposable third, making awards or attributions of specific assets (apart from the partition, which implies a broader power as it is the power to distribute, a kind of advance allocation) by any title or succession concept, or even partitions and, more importantly, acts of administration over these assets.
In any case, the legal portions can be claimed by the legitimate heirs and therefore remain safeguarded from this power granted by the testator for a longer period since they can claim from the first moment, without waiting for the legal term of 2 years (which is considered insufficient by the doctrine) or the longer period established by the deceased. Furthermore, this term is one of expiration; once it has elapsed, it cannot be exercised afterward.
Who are the real beneficiaries of these powers? The common children, but article 831.4 itself states that this power cannot alter the legal portions, so these must first be determined to know over which assets these powers can be exercised. Additionally, point 3 of the same article allows the legal portions of the children to be paid with the deceased's separate property.
This delegation of powers is most powerful when there are common children, as it allows the widow or widower to manage everything with autonomy. In both cases, with or without common children, it is necessary to determine the legal portion, with a determination of the assets, dissolution of community property (although it is not necessary to liquidate it, only to specify it), debts, to be able to determine the delegated powers.
GRANTING BETWEEN SPOUSES THE POWER TO IMPROVE THE CHILDREN'S INHERITANCE
Article 831 of the Civil Code.
Article 831 of the Civil Code according to the wording given by Law 4/2003 of November 18, on the protection of the assets of people with disabilities. Although the spirit of the 2003 reform was to consider the special situation of these heirs, the reality is that the final wording of the article contains no such mention.
Nevertheless, the evolution of society and the new structure of families have led to a modification that was already significant in 1981 due to the evolution of our society. Increasingly, widows or widowers with non-common children, that is, children from the deceased's first marriage, or during the marriage, with common children with the widow or widower from the second marriage, are inheriting. This power actually allows for a testament to grant that upon the death of the granting spouse, the surviving spouse who has not remarried may, at their prudent discretion, distribute the deceased's assets and improve them for the common children, without prejudice to the legal portions and other provisions of the will.
Law 4/2003 went a step further and no longer requires that the grantor or testator be married to the favored person, only that they have common descendants. The legal term is extended from one year to two years to execute this power to improve the common descendants (unless a longer term or any other condition is set in the will). A distinction is made between common and non-common descendants, and it is even allowed after the reform that the favored person may remarry or enter into a similar relationship or have other children, but this must be clearly stated in the will, something that was completely excluded in the 1981 wording.
What are the actual powers contemplated by this article 831, or how are they translated? They include making improvements, even with charge to the freely disposable third, making awards or attributions of specific assets (apart from the partition, which implies a broader power as it is the power to distribute, a kind of advance allocation) by any title or succession concept, or even partitions and, more importantly, acts of administration over these assets.
In any case, the legal portions can be claimed by the legitimate heirs and therefore remain safeguarded from this power granted by the testator for a longer period since they can claim from the first moment, without waiting for the legal term of 2 years (which is considered insufficient by the doctrine) or the longer period established by the deceased. Furthermore, this term is one of expiration; once it has elapsed, it cannot be exercised afterward.
Who are the real beneficiaries of these powers? The common children, but article 831.4 itself states that this power cannot alter the legal portions, so these must first be determined to know over which assets these powers can be exercised. Additionally, point 3 of the same article allows the legal portions of the children to be paid with the deceased's separate property.
This delegation of powers is most powerful when there are common children, as it allows the widow or widower to manage everything with autonomy. In both cases, with or without common children, it is necessary to determine the legal portion, with a determination of the assets, dissolution of community property (although it is not necessary to liquidate it, only to specify it), debts, to be able to determine the delegated powers.