At some point in our lives, it is advisable to decide what the destination of our heritage will be. In a will, a generic distribution of assets can be established or a specific legacy for each heir can be established. The most normal thing is to do it when you are married and have children, but it is not mandatory either, and the situation may change in case of divorce.

These are the hereditary rights of the spouses before the divorce

The situation of the spouses in the event of the death of one of them varies depending on whether or not they have made a will. Not in vain, in the absence of a will, the widowed spouse will have the hereditary rights attributed to him by law.

In this case, his share will vary depending on the heirs with whom the widower participates in the inheritance of his consort. So, if the widower attends the inheritance with children or descendants, he will have the right to the usufruct of the third of the inheritance destined for improvement. If there are no descendants, but there are ascendants, the surviving spouse will be entitled to half of the inheritance in usufruct. And in the absence of ascendants and descendants, two thirds of the inheritance in usufruct will correspond to the widower.

In the other situation, in the case of having a will, the rights of the surviving spouse can be reinforced. The wish of the spouses, in general, is that at the death of one of them, the other one should enjoy the assets of the inheritance while he/she lives, especially the family home that has been his/her residence. This claim may be guaranteed by granting in the will to the spouse the universal and lifetime usufruct of his or her assets and introducing the clause called ‘cautela socini’, with which the testator intends to ensure that his will to favor his spouse is respected.

After the divorce, do the spouses retain their inheritance rights?

The answer to this question is simple in the case of not having made a will during the marriage of the spouses, now divorced. Once the marriage is dissolved by divorce, the spouses have no inheritance rights to each other. If the divorce occurs without the spouses making a will and the death of one of them occurs, the issue will have an easy solution, since the survivor will not be the forced heir of the deceased. Therefore, they will not participate in the inheritance that will be awarded between the heirs, as determined by law and by order of kinship.

However, when the spouses have made a will, before divorcing, and one of them dies later, things change. The foreseeable thing is that each one will designate his spouse as heir, and that after the divorce they will not modify the will. In such a case, doubts may arise about the possible interpretation of the testamentary clause established in favor of the ex-spouse. It is an issue on which the Supreme Court ruled, in a ruling of 09-28-2018.

The Chamber of the Supreme Court considered the testamentary disposition made in favor of the spouse to be ineffective, as it understood that the change of circumstances (that is, the divorce) made the determining reason for which the will was made in favor of the spouse disappear.

That is, in the event of the death of a person who is divorced, and who made a will during the marriage in favor of the spouse, and never changed it, the High Court rules that the testamentary disposition at the time of the opening of the succession has lost absolutely right, being now ex-spouse, and not having hereditary rights.

In short, why is it convenient to make a will or modify it after the divorce?

Regardless of the Supreme Court’s ruling, the most appropriate thing in the event that the spouses make a will and later divorce is to revoke the text and make a new one.

The notary could demand the express resignation of the ex-spouse designated as heir. A circumstance that can be the cause of many conflicts if he attends the inheritance with the ancestors of her deceased husband, regardless of whether the testamentary disposition made in favor of the spouse before the divorce can be considered ineffective.

If the spouses have children, it will be appropriate to establish them as sole heirs in the modified will or new will after the divorce. If the children are minors, it is convenient to appoint a guardian and/or an administrator of the assets in the event of death, who can be a brother or someone trusted, so that said person could take care of the minors, in case of being necessary. Thus, “the estate is prevented from remaining under the administration of the ex-spouse until the heirs come of age.