Usufruct in Spain: what it is, examples and types.

The usufruct is a legal figure that enables the use and enjoyment of an asset (usually real estate) without it being owned by the usufructuary. The owner of the property then becomes the owner.

We review these two concepts:

Usufructuary: he is the holder of the usufruct right, who can use the property while the usufruct lasts. However, you cannot dispose of it. In other words, you have no right to sell it, although you do have the right to rent it.
Owner knot: is the owner of the domain of the home that has been made available to the usufructuary. It remains his property, but during the usufruct period he cannot use it (he owns the bare property).

What types of usufruct does the law provide?

In an inheritance we can find four types of usufruct, each with its own characteristics and peculiarities: voluntary, legal, temporary and life.

1. Voluntary

It arises when someone establishes it in their will voluntarily.

For example, if two brothers share some land and its production. Thus, upon the death of one of the two, the usufruct may belong to the other, although the property belongs to the heirs (usually the children).

2. Legal

It is the one that is formed by legal imperative. The only assumption that currently exists in our legal system is that which has to do with the right of usufruct of the spouse who remains a widower after the death of the other.

It is what is known as the legitimate widowed spouse, which includes:

If there are children or other descendants: the usufruct of the third of what is known as an improvement.

If there are no children, but there are ascendants: the usufruct of 50% of the inheritance.
When there are neither ascendants nor descendants: the usufruct of two thirds of the total inheritance.

3. Temporary

As its name suggests, this kind of usufruct has an expiration date. This time limit can be established by the testator only when it is a voluntary usufruct. If not, it will have to be determined by the judge.

4. Lifetime

In this case, the usufruct is terminated when the usufructuary dies. It corresponds to the assumption that we have discussed in the section on legal usufruct.

In other words, it is the usufruct held by the widowed spouse, a right that does not disappear until he himself dies.

What assets are usually left in usufruct?

There are a series of assets that are the most commonly used. We talk about:

Real estate – for example, homes, land, or garages. If we focus on inheritances, the reason for leaving the home in usufruct in favor of the widower has to do with preventing other family members from claiming it and leaving him homeless.

Participations or shares of a company: although the partner continues to be the owner of the titles, the usufructuary of the same has the right to receive the benefit derived from them.
Money: this is the most complex form of usufruct, since in this case the usufructuary has the right to use the money from a certain checking account, but must return it when the right ends. If he does not do so, the knot who owns the money has the right to claim it from him. Of course, you can only ask for the money you have disposed of, not the interest that it has generated.

How is the usufruct calculated?

Calculating the value of the usufruct right can be useful, basically, in two situations:

If the bare owner wants to sell the asset in question.
When you have to face the Inheritance and Gift Tax.
To obtain its value, it will be necessary to distinguish whether it is a temporary usufruct or a life usufruct.

Calculation of the temporary usufruct

The temporary usufruct has a specific value: 2% of the value of the asset in usufruct for each year that passes, with a minimum of 10% and never reaching 70% of the total value.

Calculation of lifetime usufruct

Obtaining the value of a life estate is more complicated, since it is not possible to know in advance how long the right will last. Therefore, what is done is to set the maximum age at 89.

To obtain the value of the asset, the current age of the usufructuary must be subtracted from this figure. The resulting number will be the percentage to be applied to the final value of the asset, with a minimum of 10% and a maximum of 70%.