Surviving spouse: does the right of residence exist? What are the rights of the bare owner?
Let’s suppose that a man, legally married, decides to register an apartment in his son’s name while keeping the usufruct for himself. What will happen when he dies? What rights will the wife have over the family home? Will it be possible for her to continue living there or will she be forced to leave her home? Upon the death of the usufructuary, what rights does the surviving spouse have?? Will the latter be able to benefit from the right of residence, which generally belongs to the husband or wife as soon as the owner of the property passes away? Let’s analyze the situation to clarify these aspects.
Does the usufruct go to the heirs?
The usufruct allows its owner (the usufructuary) to enjoy a property owned by others (the naked owner): he will therefore be able to live there, rent it or loan it.
The usufruct never falls into succession, so that the usufructuary’s heirs will not be able to claim any rights over the property. Therefore, at death of the usufructuary, the usufruct is automatically extinguished and the bare owner acquires full ownership of the home. The latter, in other words, must not take any action to regain possession and enjoyment of the property, except for a transfer to the Land Registry.
However, a question often arises in such situations: whether the usufructuary was married, can the spouse continue to stay in the house under the right of residence? The answer is negative. There is no right of residence in the case of usufruct. The usufructuary’s heirs, including the surviving spouse, cannot claim any rights. The wife will therefore have to leave the property (unless otherwise agreed with the naked owner who, in the meantime, has become full owner).
This rule, however, finds two exceptions in the case in which, in the deed establishing the usufruct, one of the following clauses has been explicitly provided for:
- usufruct subjunctive;
- subsequent usufruct.
Below we will explain how these two figures work.
Subsequent usufruct
This form of usufruct provides that, upon the death of the first usufructuary, the right of usufruct automatically passes to another person, already designated at the time of the establishment of the usufruct. Only upon the death of the latter will the bare owner acquire his right to full availability of the asset.
It is not possible to provide for a third party beneficiary.
Conjunctive usufruct
Conjunctive usufruct occurs when two people simultaneously enjoy the right of usufruct on an asset. Upon the death of the first usufructuary, the second will continue his right until his death, at which time the bare owner will expand his right.
In this configuration, the subjects involved have the right to use and profit from the common good; with the death of one of the owners, the right of usufruct does not expire but continues for the other living co-usufructuaries.
Difference between subsequent and subjunctive usufruct
In subsequent usufruct, the right of usufruct belongs to a single person and, upon his death, it transfers to another. The latter, however, cannot claim any rights before this moment.
In conjunctive usufruct, however, the holders of the usufruct are, since its constitution, two subjects who therefore have equal rights. The extinction of the usufruct occurs with the death of the longest-serving usufructuary.
