Spouses have various options for settling their estate. First of all, they must be aware of the form in which they wish to draw up their last will and testament and then determine the respective content. The options include drawing up a spouse's will, concluding an inheritance contract and two separate individual wills. In the following, the separation and unity solution in the spouse's will will be presented in particular, as well as a comparison of the regulations with each other and with the conclusion of an inheritance contract and the establishment of separate individual wills.
In the separation solution (so-called prior and subsequent succession), the spouses appoint each other as prior heirs and appoint third parties (usually the children) as their respective subsequent heirs. The third party is also appointed as the surviving spouse's substitute heir. This is because a prior and subsequent inheritance can only occur at the first inheritance. The separation solution is so called because the spouses' respective estates pass separately. After the first inheritance, two estates are created for the surviving spouse and must be kept strictly separate. A significant disadvantage of this is that the surviving spouse is subject to severe restrictions with regard to his or her power of disposal over the inherited assets.
In the unified solution, the spouses appoint each other as sole heirs and appoint a further heir for the survivor (so-called final heir). This final heir is also designated as the survivor's substitute heir. Reason for appointing a substitute heir: Both spouses have appointed themselves as (primary) heirs. If one of them dies, this appointment no longer applies. In this respect, the final heir is the substitute heir. The choice of the final heir can also be left open and the longer-living spouse can be granted the right to designate. The unified solution is so called because the assets merge into a single unit after the first inheritance and are then transferred uniformly. This also means, for example, that a descendant is disinherited on the first inheritance. During their lifetime, each of the two partners is basically free to dispose of their assets. A significant disadvantage here is the children's claim to a compulsory portion. By appointing the surviving spouse as sole heir, you simultaneously disinherit children entitled to a compulsory portion.
Compared to the other forms of making a last will and testament, spouses must consider the key points: Binding effect, revocation option and costs. If there is no wish to be mutually bound, the will can be revoked at any time without any formalities and costs are to be avoided, an individual will for each spouse is preferable. If a binding effect under inheritance law is to be created from which the other partner can no longer unilaterally withdraw after the will has been drawn up, a joint will or an inheritance contract are the right choice. The contract of inheritance has the most binding effect.
The main advantage of a spouse's will is that the other spouse is protected and there is no inheritance dispute. A major disadvantage arises if the spouses have high assets. From an inheritance tax point of view, a spouse's will generally makes little sense here, as allowances are not optimally utilized and assets can potentially be subject to inheritance tax twice.
It is not possible to say in abstract terms which option is generally preferable. It depends on the individual case and what wishes are placed on the organization of the estate. It is crucial that the estate is settled, even if this is not always easy to deal with.
Saskia Porta, a registered lawyer in the German and Spanish Bar Associations, is a recognized expert in inheritance, corporate and contract law with specialist knowledge of the Balearic Islands. She works alongside Dr. Dominic Porta, a recognized expert in international commercial law with specialist knowledge of Spanish real estate law, in his law firm in Mallorca. Here, the specialist lawyers advise clients of NEPTUNUS INTERNATIONAL Real Estate, among others, on all legal matters relating to real estate.
More information at https://www.anwaltmallorca.eu/
