Party Autonomy and Estate Planning: Reform Proposals to Shield the Surviving Spouse (2026)

Introduction

The default rights granted by law to the surviving spouse or partner are a basic safety net — yet often insufficient against today's family realities. In most European jurisdictions the survivor's position is qualitatively weaker (usufruct vs full ownership) and subordinated to descendants.

This is where estate planning comes in — a toolbox that lets individuals reshape the economic balance of their succession. A comparative review, plus the gaps in Spanish law, point to urgent reforms *de lege ferenda*.

1. Modifying the matrimonial regime as a planning act

The first major tool is in family law, not succession law: marital agreements.

• France (art. 1524 CC): spouses may agree asymmetric shares or even full attribution of common property to the survivor.
• Germany (§ 1931.1 BGB): swapping *Zugewinngemeinschaft* for separation makes the survivor inherit equally with the descendants, altering the default intestate share.
• Spain: switching from *gananciales* to separation weakens the survivor in life liquidation, with no automatic compensatory increase in the intestate share.

2. Spain's straitjacket vs European flexibility

2.1. Succession pacts and joint wills

The Spanish Civil Code bans pacts on a future inheritance (art. 1271 CCE) and joint wills (art. 733 CCE). By contrast:

• Germany: succession pacts and the famous Berliner Testament allow spouses to name each other universal heir, deferring children until the second death.
• Common Law UK: *joint* and *mutual wills*, plus heavy use of will-substitutes — Trusts and Joint Tenancy (automatic *right of survivorship*, bypassing probate).

2.2. The *cautela sociniana*

In ordinary Spanish law the main lever is the cautela sociniana (art. 820.3º CCE): leaving the survivor the universal usufruct and forcing forced heirs to choose between accepting the encumbrance or taking the strict *legítima* free of charges (losing the free-disposal third).