A thorny question about land inheritance in Spain...

I wonder if anyone could help me with a potentially thorny issue of inheritance regarding the ownership of Spanish land.

I and my partner - both UK nationals, and we are not married - are on the cusp of buying some agricultural land in Catalonia, to live entirely on it, with no other home. (I will call myself A and my partner B.) We plan to farm it, and to erect moveable living structures on it, using the small caseta on the land also. Farming the land will be A's primary role, but B will also be involved in the decision-making in regard to the farming activity.

The money for the land, and the legal costs, will come entirely from B. A has two adult children, from a previous relationship, with whom both A and B do not particularly get on. B has two adult children also, also from a previous relationship.

A and B have assumed so far that they will be jointly owning this land...

But the question has arisen: what happens on their death(s)?

A is not especially bothered (especially since the money for the original purchase is not his!) about owning land or passing on land to his children. He is, however, concerned - and B agrees - that, should B predecease him, he should have an inalienable right to live on the land, until his death or until any decision he makes to leave the land, without disturbance from anyone, including B's children. He does not want to be in a position (and nor does B, for him) to have to live on the land by B's children's grace and favour.

In turn, B is most anxious to avoid a situation where, if A predeceases B, A's children have a right, under Spanish or English law, to inherit any or part of this agricultural land. B rightly points out that A will not have contributed financially to the original. B also wants to avoid any possibility that A's children might even imagine that there could be money for them out of this property - it needs to be crystal clear that there is nothing coming to them. B does not wish to have to relate to them in negotiations or discussion about this land and any rights they may think they might have to any or part of it.

A is entirely happy that, after both A and B have died, the land or its value should go to B's children.

We are aware of the following: (a) that joint wills are not possible under Spanish law; (b) that Spanish law says that English inheritance law applies, but that English law 'bounces' this straight back into Spanish jurisdiction, so that Spanish law determines the final position; and (c) that there is an automatic right under Spanish law for children to inherit a person's estate.

This why we wish to address this issue before we sign the contract for the deposit, which contract is presently drafted with us jointly as potential purchasers.

Is there any way, under Spanish law, for this land to be held jointly, and achieve the precise outcome we want? Is there any way to give A a right to live as long as he wishes on the land, should B predecease him? Is there any way of making it impossible for A's children to believe, should A predecease B, that they have any claim upon the land?

Sorry this is so long - and thanks for any help you can offer!

I repeat I am not a lawyer and you should get advice from a legal professional and not rely on my words in any way at all...however as your question has not been answered I'll chip in with what I know from personal experience...it may give you some useful background info which you can then discuss with a competent legal professional before taking any action.

In your post above, you call yourself A initially but then seem to refer to yourself as B from then on...

I am taking it that you are B, (a woman I infer) and you are paying for the property. If you predecease your partner (A) you want your partner to have a right to live on the land undisturbed by your children until he dies (or wishes to leave). But after that you want the land to pass to your children and certainly not his under any circumstances.

If your partner predeceases you, you want to ensure that his children can make no claim on the land.

So...

In Spanish law there is something called "usufructo" which translates as "Use of the fruit". There is no real equivalent in english law. In spanish law a distinction can be made between those who own something (land/property etc) and those who have a right to use it. Usufructo is the right to use.

You could arrange things (after discussion with a competent legal professional) so that you own the land in your name only and make a will where you give your partner "usufructo" with the remainder going to your children.

This means that if you predecease him, at that point your children essentially become "owners" of the land but with no right to use it or step foot upon it, and your partner has the right to use it undisturbed by your children until his death without actually owning it!

An usufructo cannot be passed down to (his) children in any way and expires upon the death of the person who has been granted it.

This on the face of it would seem to satisfy all your requirements:

• If you predecease your partner he can live on the land undisturbed by your children until his death at which time full usage rights (they already have ownership) pass to your children.

• If he predeceases you, nothing really changes as you are the sole owner anyway and the usufructo section of your will becomes irrelevant as the beneficiary of it has already passed away - on your death the estate goes to your children

There are a couple of things to bear in mind though (and this is where I got stung...)

• As your children become owners (but not users) of the land if you predecease your partner, they will be liable for inheritance tax upon your death for a piece of land that they own but cannot sell or even use.

• Your children will theoretically be liable for various yearly taxes that are due on the land as they are the owners (even though not the users)

As you can imagine, depending on your children's financial situation, this could be quite a burden on them

As you might also have guessed, I was a child in exactly this situation - which is how I know about all this.

BUT I DID MENTION I AM NOT A LEGAL PROFESSIONAL, THIS DOES NOT CONSTITUTE LEGAL ADVICE, YOU SHOULD NOT RELY IN ANY WAY ON ANYTHING I HAVE WRITTEN, AND YOU SHOULD MOST CERTAINLY CONSULT A COMPETENT LEGAL PROFESSIONAL BEFORE TAKING ANY ACTION RIGHT?

I hope this helps and I am slightly shocked that I find myself suggesting it given the nightmare the "usufructo" granted to my mother's partner gave me as a child beneficiary. Usufructo is pretty much bulletproof. I tried to fight it and failed...It sounds like it's what you want but your children will probably not thank you for it (due to the immediate financial burdens placed on them) - and you should be aware of that.

I'll just add that you should ensure that the Usufructo only applies to the land and nothing else - if you have any other assets such as cash, jewellery, family heirlooms and personal effects that you would like to go to your children upon your death, make sure they are dealt with separately in the will. Otherwise that will become part of the Usufructo too....I had to go to court just to get our family photographs! If you want your children to sort though your things after you pass away - state that explicitly in your will as once you have gone and your partner has usufructo they will have no right to set foot on the land or touch your stuff.

For example if there was cash in a bank account that became part of the usufructo, your partner would be entitled to the interest on the lump sum (without being able to touch the lump sum itself) and your children would not get it until your partner also passed away. Again that's what happened to me.

Once again, I am not a legal professional and this does not constitute legal advice.

Thanks, kind people. I'm very grateful for the advice :), and will follow it up with a Spanish lawyer.

Quote:

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Originally Posted by physiog57

I wonder if anyone could help me with a potentially thorny issue of inheritance regarding the ownership of Spanish land.

I and my partner - both UK nationals, and we are not married - are on the cusp of buying some agricultural land in Catalonia, to live entirely on it, with no other home. (I will call myself A and my partner B.) We plan to farm it, and to erect moveable living structures on it, using the small caseta on the land also. Farming the land will be A's primary role, but B will also be involved in the decision-making in regard to the farming activity.

The money for the land, and the legal costs, will come entirely from B. A has two adult children, from a previous relationship, with whom both A and B do not particularly get on. B has two adult children also, also from a previous relationship.

A and B have assumed so far that they will be jointly owning this land...

But the question has arisen: what happens on their death(s)?

A is not especially bothered (especially since the money for the original purchase is not his!) about owning land or passing on land to his children. He is, however, concerned - and B agrees - that, should B predecease him, he should have an inalienable right to live on the land, until his death or until any decision he makes to leave the land, without disturbance from anyone, including B's children. He does not want to be in a position (and nor does B, for him) to have to live on the land by B's children's grace and favour.

In turn, B is most anxious to avoid a situation where, if A predeceases B, A's children have a right, under Spanish or English law, to inherit any or part of this agricultural land. B rightly points out that A will not have contributed financially to the original. B also wants to avoid any possibility that A's children might even imagine that there could be money for them out of this property - it needs to be crystal clear that there is nothing coming to them. B does not wish to have to relate to them in negotiations or discussion about this land and any rights they may think they might have to any or part of it.

A is entirely happy that, after both A and B have died, the land or its value should go to B's children.

We are aware of the following: (a) that joint wills are not possible under Spanish law; (b) that Spanish law says that English inheritance law applies, but that English law 'bounces' this straight back into Spanish jurisdiction, so that Spanish law determines the final position; and (c) that there is an automatic right under Spanish law for children to inherit a person's estate.

This why we wish to address this issue before we sign the contract for the deposit, which contract is presently drafted with us jointly as potential purchasers.

Is there any way, under Spanish law, for this land to be held jointly, and achieve the precise outcome we want? Is there any way to give A a right to live as long as he wishes on the land, should B predecease him? Is there any way of making it impossible for A's children to believe, should A predecease B, that they have any claim upon the land?

Sorry this is so long - and thanks for any help you can offer!

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Dear Physiog57,


If A and B are of British nationality, both of them have assets in the UK and both have acquired ownership proindiviso, both have free disposition of their 50% share in ownership, and therefore both can grant will, always in relation to their percentage in the property, leaving their share in the property to whomever they like. You could leave your share to the surviving owner, adding other heir/s in the event of simultaneours or previous death of the co-owner.

If there were no assets in the UK, the rights of the legitimate heirs ( living children and parents ) would have to be observed.

Best Regards,