Living together after the death of a spouse can have unexpected legal implications, especially when it involves the right to exclusive use of shared housing. This case, judged in Girona, raises precisely this question: to what extent the widower maintains his rights over the home where he lived with his deceased wife when he decides to remake his life.
In this specific case, the Girona Provincial Hearing ordered a man to pay monthly compensation of 807 euros to his late wife’s grandchildren, for having continued to occupy the house they both shared alone. The property had been inherited in equal shares between the widower and his grandchildren, but the court understood that the man no longer had the right of preferential use provided for in the Catalan Civil Code, according to the Spanish digital newspaper Noticias Trabajo.
The decision was based on the fact that the widower had started a new relationship and stable coexistence with another woman, which, according to the law, extinguishes the so-called “any de plor”: the year of mourning.
A shared inheritance and a disputed right
According to the sentence, dated July 23, 2023, the wife had left her half of the house to her grandchildren, who formalized the acceptance of the inheritance three months after her death. The other half remained in the widower’s possession. However, the grandchildren found that the man was fully occupying the property, preventing access, and demanded compensation corresponding to half the market value of the lease, estimated at 1,614 euros per month.
The widower refused the request, claiming that he did not live maritally with his new partner and, therefore, maintained the right of temporary use granted for the year of mourning. This right, provided for in the Catalan Civil Code, grants the surviving spouse the usufruct of the house for one year after the death of the partner, unless there is proof of new cohabitation, says the same source.
First decision in favor of the widower
The Juzgado de Primera Instancia no. 3 of Figueres initially ruled in favor of the widower, recognizing his right to a year of mourning. The court considered that there was insufficient evidence of the existence of a new stable relationship, and therefore the man could continue to live in the house until the end of the one-year period.
However, after the end of this period, the grandchildren again insisted on compensation, arguing that the widower’s exclusive use of the house harmed them financially. It was then that the case went to higher court.
Decisive test: living with another woman
The Girona Provincial Hearing evaluated new evidence, including a report from private detectives, and concluded that the widower maintained a stable relationship with another woman. Based on this fact, the court considered that the right to a year of mourning was extinguished, in accordance with article 231-31 of the Catalan Civil Code.
The ruling also cited article 386 of the Civil Judgment Law, which allows the judge to presume facts from indirect evidence. Among these, the fact that the widower did not spend the night in the house in question and habitually resided in another home with his new partner stood out, according to the source previously cited.
Compensation for losses caused
This decision of the Hearing recognized that the exclusive occupation of the dwelling generated obvious harm to the remaining co-owners, even without the need for concrete proof of that harm. Thus, it set compensation of 807 euros per month, corresponding to half the rental value of the property, to be paid from the date of the grandchildren’s formal complaint until the man stops using the house.
The ruling highlighted that the widower’s right to use is not absolute and depends on compliance with the legal conditions that support it. From the moment you rebuild your life with another person, the law understands that the connection to the marital home is extinguished.
Despite being clear in its reasoning, the decision is not yet final, says . A cassation appeal may be lodged against the ruling of the Girona Provincial Hearing before the Supreme Court or the Superior Court of Justice of Catalonia.
What if it happened in Portugal?
If the scenario described were to happen in Portugal, we would be faced with a situation in which the surviving spouse exclusively occupies a property that is part of the deceased’s inheritance, while other heirs (for example grandchildren) claim their right to enjoy or share that asset. In our legal system, the Portuguese Civil Code (CC) provides for the surviving spouse’s right to live in the family home and use its contents (articles 2103-A to 2103-C).
In the specific Portuguese case, the surviving spouse would have a preferential right to the allocation of the family home if it was owned by the deceased or shared by the couple, with the remaining heirs having to compensate him if a value greater than his share is attributed (article 2103-A, no. 1). However, this right is not absolute: if the property is co-owned between the spouse and other heirs, the remaining heirs can request sharing.
Furthermore, in the context of co-ownership, article 1406 of the CC determines that “in the absence of an agreement on the use of the common thing, any of the co-owners is permitted to use it, as long as they do not use it for a purpose other than that for which the thing is intended and do not deprive the other co-owners of the use to which they are equally entitled”.
Exception in case of new union or marriage
It is important to highlight that Portuguese legislation does not expressly provide for an institute equivalent to the “any de plor” (year of mourning) that appears in Catalan law, nor a rule that automatically extinguishes the right to housing upon new cohabitation of the surviving spouse. However, Portuguese doctrine considers that, if the family living environment changes substantially: for example, due to a new de facto union or marriage of the survivor, this fact may render the purpose of the granted right of housing detrimental and justify the termination of that right through abuse or a change in the original factual situation.
Finally, if another heir is prevented from using or accessing the property as a result of the surviving spouse’s exclusive occupation, he or she may sue in court for the sharing of the inheritance, or compensation for improper use of the common property, based on article 1406 or other property and succession law provisions. Thus, the Portuguese situation would reveal complexities similar to those of the Catalan case, requiring a specific assessment of the right to housing, co-ownership, acceptance of inheritance and evidence of new coexistence.
This case illustrates how the courts interpret the balance between the right to mourn and the protection of remaining heirs, highlighting that living together after the death of a spouse has direct legal consequences on the use of common property.
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