New Civil Code grants benefits to spouses in inheritances
Sunday, May 23, 2021 - 11:40 p.m.
The new Civil Code of Puerto Rico includes changes in the aspect of inheritances that benefit spouses, by including them in the group that inherits in a mandatory way and guaranteeing them the right to stay living in their home.
Attorney Astrid Soto López points out that, if a person died before the new Civil Code went into effect on November 28 of last year, the provisions of the previous statute apply, regardless of whether he or she made a will or not.
"And people who made a will before the new Code went into effect, have to review it because, if they made it before and die today, the provisions of the new Code apply," indicates attorney Soto López. This implies that the person loses the opportunity for the distribution of his or her assets to be made strictly according to his or her wishes due to the changes in the law and that the process becomes more complicated for his or her heirs.
One of the main changes in the Civil Code in terms of inheritance is the way in which the estate is distributed. Until November 2020, the inheritance was divided into three parts: one for the forced heirs (those who the law stipulates that they inherit compulsorily, that they cannot be deprived of the inheritance); another third to further benefit any descendant; and a third part of free disposition to benefit any other person or entity.
As of November 28, 2020, inheritances are distributed in two parts. 50% is of free disposition and the other half (legitimate) is divided equally among the forced heirs, which are the children and now include the widow or widower.
For Soto Lopez, this change is important because now the spouse does not depend on a calculation to determine what was known as the widow's share, but automatically enters into the equal distribution of 50% of the inheritance, together with the children.
The change results, in turn, in a guarantee for the widow or widower, although it implies that this 50% of the inheritance is divided among a greater number of people, so that each one could receive less.
"The fact that the spouse enters as forced heir benefits him/her, because now he/she is a direct heir. Before, it was the usufructuary widow's quota, which was like a lien on the inheritance that depended on the number of children," says the lawyer. These changes apply when the deceased person leaves a will. If there is no will, the estate is distributed equally among the forced heirs, she explains.
The surviving spouse has his or her own right to inherit together with the descendants of the first order, if the deceased person has not made a will. In the latter case, the estate is divided equally.
Right to housing
Another significant change in the Civil Code protects the surviving spouse by recognizing his or her right to the family home. The change allows the widow or widower to decide to stay in his or her home, instead of receiving his or her 50% share of the estate to which he or she is now entitled.
In turn, it avoids the risk of the heirs demanding the sale of that property in order to distribute the money. In the event that the value of the home exceeds the inheritance, the surviving spouse has a "lifetime right of habitation", which allows him or her to continue living in the residence for as long as he or she lives, at no cost, the lawyer points out.
The order to inherit
The new code establishes that the order of inheritance is as follows: first, descendants (children) and spouses in equal parts; second, and in the absence of the previous group, ascendants (parents); third, collateral relatives, such as siblings of the deceased; and lastly, the state.
On the other hand, the new code does not recognize the right to inherit between people who live together without being married and, in the case of couples who divorce or whose marriage is declared null and void, testamentary dispositions in favor of the spouse are revoked.
Regarding the debts of the deceased person, as of November 2020, the law limits the payment responsibility of the heirs. These have the responsibility to pay the debts they inherit up to a value equivalent to the assets they inherit, i.e., if the debts are greater than the estate they inherit, they do not have to pay that portion.
On the other hand, the new legal order introduces a new modality by allowing that, in case of epidemic or imminent danger of death, the will can be made by means of a video, with the presence of three witnesses.
Another change is that the closed will is eliminated, for which the person had to do it in front of a notary and with three instrumental witnesses. The open will is maintained, which must also be made in front of a notary, although the obligation to have three witnesses is eliminated. The presence of witnesses, however, may be required by the testator or the lawyer-notary.
Also, there remains the modality of the holographic will, which people can write on their own, without the need to appear before a notary attorney. This type of will can be made by persons 18 years of age or older, while persons 14 years of age and older can make an open will, before a notary.
The new code adds negligence as a cause for disinheriting a descendant and specifies that a person who has been declared mentally incapacitated can make a will with a notary in a moment of lucidity, as long as one of the instrumental witnesses is a psychologist or psychiatrist, Soto Lopez points out.
The attorney emphasizes that the law in Puerto Rico only allows individual wills, contrary to other jurisdictions where joint wills are allowed.