Is there a special regime for matrimonial property or the property of a civil partnership, and how does that regime affect succession?

Private Client (2nd edition)

Israel Small Flag Israel

As to matrimonial property - please see Section 12 above.

Israeli law does not have a uniform definition for civil partnership. However, section 55 of the Israeli Inheritance Law 1965 (the “Inheritance Law”) refers to a man and woman who lead a family life in a common household. This law does not expressly relate to a couple as civil partners, but that is the common interpretation. Other Israeli laws use other definitions for civil partnership. According to said section 55, if a man and a woman who are not married lead a family life in a common household, and neither of them is married to another person, the surviving partner will be seen as if the deceased has left for him or her whatever the surviving partner would have received according to the inheritance law if they were married, unless otherwise stated in the deceased’s last will and testament.

Any couple, whether married or not, can enter into a pre-nuptial agreement. If such agreement is approved in accordance with the Israeli Property Relations Between Spouses, 1973 (if the couple is married, the agreement should be authenticated by a public notary, otherwise it should be approve by the family court having jurisdiction over their place of residency) it can be enforced by the Israeli courts.

Ireland Small Flag Ireland

There is no special regime for matrimonial property or the property of a civil partnership under Irish law.

Belgium Small Flag Belgium

In the absence of a marital contract, the statutory matrimonial property regime applies, which is a regime of separation of property with a community of marital gains. In principle, all income and assets the spouses acquire during their marriage is common property. Only premarital assets, donations/bequests (even received during the marriage), strictly personal goods and some specific assets belong to the exclusive property of the spouses. A new law on matrimonial property regimes, that also entered into force on 1 September 2018, has clarified and refined several provisions of the statutory matrimonial property regime, a.o with respect to professional goods and individual life insurances.

In a marital contract spouses can make other arrangements:

  • adopt a regime of full separation of property: all income and assets belong to one spouse or the other. Assets acquired by both spouses and assets that neither spouse can prove to be his own, will be joint property. As of 1 September 2018, this regime has been upgraded in order to enhance matrimonial solidarity, e.g. by offering the possibility to opt for a statutory regime on the division of assets acquired during marriage when one of the spouses passes away and/or in case of divorce.
  • adopt a regime of full community property: all income and assets (including premarital assets) of the spouses belong to the community property; spouses do not have exclusive property.

When a married person passes away, the matrimonial property regime is settled and distributed in order to determine the composition of the estate. The estate is composed of the deceased’s exclusive property (if any) and in principle half of the community or joint property (if any).

Legal cohabitants do not have a community property. Assets acquired by both cohabitants and assets that neither of them can prove to be his own, are joint property.

United States Small Flag United States

Under the US tax system, there are certain differences afforded to married couples.

With respect to income tax, a married couple who files jointly sometimes may pay more than they would as two single people. On the other hand, when one spouse earns all or most of the income, the couple often receives a ‘marriage bonus’, paying less in income taxes for their joint income than they would individually. A married couple also receives a standard deduction that is twice as high as the deduction for a single person. The capital gains tax exemption on the sale of a primary residence is $500,000 for a married couple as opposed to $250,000 for a single person. Spouses can also roll over a traditional or Roth IRA received from a spouse into a spousal rollover IRA.

With respect to succession, the rules for matrimonial property vary from state to state. In a community property state, the union is viewed as a partnership in which each spouse contributes labour. Each spouse automatically has a 50% interest in all community property, regardless of which spouse acquired the community property. Community property is generally defined as all property acquired during marriage that is not established to be separate property. Separate property is property owned solely by one spouse or the other.

In community property states, each spouse is taxed on 50% of the total community property regardless of which spouse acquired the income. Each spouse is taxed on 100% of his or her separate property.

For federal tax purposes, a taxpayer’s rights and interests in property are determined under the laws of the taxpayer’s state of domicile. In a community property state, each spouse has the right to dispose of his or her share of community property in whatever way he or she desires, including giving his or her half of the community property to someone other than the surviving spouse.

In non-community property states, ownership is determined by the name on title. Most non-community property states have right of election statutes, which prevent a decedent from disinheriting his or her spouse. For example, in New York, a decedent must leave his or her spouse the greater of $50,000 or one-third of his or her estate. If the decedent does not provide in his or her Will that the spouse receive his or her ‘elective share’, the spouse can elect against the Will. In some states, the elective share is dependent on the number of years the parties were married.

Generally, a spouse’s rights and interests in the other spouse’s estate are determined under the laws of the decedent’s domicile. In non-community property states, the elective share of a surviving spouse cannot be curtailed without the consent of the surviving spouse.

Cyprus Small Flag Cyprus

Article 13 of the Regulation of the Spouses' Property Relations Law of 1991 (Law 232/1991) provides that marriage does not affect the proprietary independence of the spouses; each spouse retains and acquires his or her own property after marriage. The spouses may acquire joint property, in which case each has an undivided share in such property. If the marriage is annulled or dissolved, or if the parties separate, then either may claim his or her contribution to the increase of the property of the other spouse. Prenuptial agreements between the spouses, or any agreements between the spouses for the future settlement of the matrimonial property concluded after the marriage but before separation, are not binding. Following separation, however, the parties may freely settle their matrimonial property between themselves, without recourse to the courts.

Austria Small Flag Austria

Marriage or civil partnership does not create common property except there is a common property contract between the spouses.

In principle every person holds a property on everything he/she has got (in any kind) before a marriage and will hold property on this estate during marriage.

If spouses agree on common (matrimonial) property in a marriage contract (to be executed by notarial deed) various forms of common property are possible.

Bulgaria Small Flag Bulgaria

Civil partnerships (either registered or non-registered) are not recognized in Bulgaria and therefore have no effect on the partners’ properties. In the absence of a civil marriage, the surviving partner is not a forced heir and therefore is entitled to a share of the estate of the deceased partner only if specifically provided so in a will.

Matrimonial property is subject to three possible regimes subject to registration with a centralized public electronic register:

Regime of community of property

This regime is applicable where the spouses:

  • are underage;
  • are not of full capacity;
  • have not made a different choice with respect to their matrimonial property regime.

Property acquired during the marriage as a result of a joint contribution (e.g. provision of financial means, childcare, household work) is owned jointly by the spouses. The regime of community property does not apply to property acquired by a spouse before the date of the marriage, as well as to property acquired by inheritance, gift, as a sole trader in the exercise of commercial activity; movables intended for normal personal use or for the exercise of a profession or craft; property acquired entirely with property of one of the spouses.

Upon death, the surviving spouse is entitled to half of the common property. This means that only the remaining half of the common property is subject to succession. The regime terminates upon termination of the marriage, e.g. upon death, divorce, annulment.

Regime of separation of property

Property acquired during the marriage is personal property to each spouse and each spouse is entitled to dispose of it without the consent of the other. Any alienation of the family home is nevertheless subject to the rules applicable to community property.

The spouses share the family expenses. In the event of divorce, each spouse is entitled to receive a portion of the value of the property acquired by the other spouse during the marriage in so far as he/she has contributed by work, childcare, household work or otherwise.

Contractual regime

Property rights are governed by means of a marriage agreement. It can be signed before the date of the marriage or at any time thereafter.

Argentina Small Flag Argentina

Under the CCC future spouses have the possibility of opting, by entering into marriage conventions (the "Conventions"), between a shared/marital property regime or a separate property regime.

Section 463 of the CCC establishes that in the event that no convention is made or the convention does not set forth any provision regarding the property regime, the traditional shared/marital property regime will be applied.

Conventions may be created for the purpose of (Section 446, CCC):

  • Designation and appraisal of the goods that each of the future spouses brings to the marriage.
  • Admission of debts.
  • Donations made between each other.
  • Option chosen taking into account the regimes contemplated in the CCC.

Section 448 of the CCC provides that in order for the Conventions to be valid, they must be executed by public deed (escritura pública). In order for the Conventions to be effective towards third parties, the marriage certificate must include a note in the margin specifying the chosen regime.

In the event that the spouses decide to change the regime, the amendment must also be made by Convention and by a public deed, for which the spouses must have been married for at least one year. In the event that there are creditors affected by this change, they will have one year to object, as from the date they became aware of the change.

When a marriage is terminated (due to death or divorce), the assets that qualify as shared/marital property are grouped together and, after the applicable liabilities and claims of each spouse have been worked out, divided and distributed between the spouses and in the case of death, between the surviving spouse and the heirs of the deceased.

Argentine law recognizes marriage between same-sex couples, so the same marital property regime applies in such cases. "Marriage" is defined as a person being united to another of the same or opposite sex, in a consensual and contractual relationship recognised by law, the consent to which is usually expressed in the presence of a public officer. Argentine law also recognizes a civil partnership, which is a legal union or contract similar to a marriage between two people of the same sex.

The CCC recognizes certain rights of domestic partners provided they have been together for at least two years. Through the means of "cohabitation agreements" (Pacto de Convivencia) domestic partners are able to regulate different aspects of their life together, such as economic aspects and other responsibilities. It also provides protection for the family home and, in case of death of one partner, the survivor is granted the right of free housing in the home they shared, for a period of two years.

Under Section 524 of the CCC, a domestic partner who suffers a glaring imbalance in his or her economic situation (as a result of the end of the cohabitation) may claim before court an economic compensation. The surviving domestic partner has no inheritance rights over the estate of the decedent.

Monaco Small Flag Monaco

Under Monegasque law, the statutory matrimonial property regime is that of separation of property.

As indicated in Question 12 above, the surviving spouse is not a reserved heir under Monegasque law. The surviving spouse can only benefit from the disposable portion of the estate.

If an individual dies without a Will and Monaco internal law applies to the succession pursuant to the existing conflict-of-law rules, the estate is distributed between the surviving members of the deceased’s family, according to the following rules of intestate succession as provided by the Monaco Civil Code.

The succession rights of the surviving spouse:

If the deceased leaves a spouse who was not judicially separated from the deceased at the time of his or her death, and also children, the surviving spouse receives the same share as a child. The spouse’s share cannot be less than one-quarter of the estate.

The following distribution is prescribed by law: if the deceased leaves a spouse and a child, each receives half of the estate; if the deceased leaves a spouse and two children, each receives one-third of the estate; if the deceased leaves a spouse and three or more children, the spouse receives one-quarter and the remaining three quarters are divided between the children in equal shares.

If the deceased leaves no descendants and no collaterals, but leaves one or both parents and also a spouse, each parent takes one-quarter and the spouse takes the remaining part. There are also specific rules to determine the distribution of the estate in the event when the deceased leaves a surviving spouse and other ascendants than his or her parents.

If the deceased leaves one or both parents and brothers or sisters or their descendants, the surviving spouse receives half of the estate, with one-quarter going to each parent and any remaining balance (if only one parent survives) going to the deceased’s brothers or sisters or their descendants.

The surviving spouse will inherit the entire estate if the deceased is survived by no descendants, no ascendants, no brothers or sisters or their descendants.

Civil partnerships are not recognised in Monaco. Under Monegasque law, civil partners do not have any succession rights.

Italy Small Flag Italy

The community property regime is the default regime applicable to all property acquired during marriage, unless the spouses have elected (either at the time of their marriage or at a later date) for the separation of property regime.

Bermuda Small Flag Bermuda

There is no special regime for matrimonial property or the property of a civil partnership. Ownership of property acquired both prior to and during a marriage is determined on ordinary principles.

United Kingdom Small Flag United Kingdom

13.1 For succession purposes, there is no special regime for matrimonial property or the property of a civil partnership.

13.2 Where an individual's estate (or part of it) is not disposed of on death by a valid Will, then a surviving spouse or civil partner will gain an interest in the estate (or that part) under the intestacy rules (§16.2). A cohabitant who was not a spouse or civil partner of the deceased is not entitled to any portion of the deceased's estate under the intestacy rules.

13.3 A spouse or civil partner may have a claim against the personal representatives (§17.1) of an individual who died domiciled (§1.9) in England and Wales (§12.3).

13.4 For matrimonial law purposes, the courts of England and Wales have wide discretion to divide property on divorce or dissolution of a civil partnership. On the separation of a cohabiting couple, the cohabitants have no right against each other under matrimonial law, but may have rights under trust law.

Colombia Small Flag Colombia

The general rule for marital property is the community of property regime. This is a regime that automatically comes into effect for all marriages and will remain so until the community of property is dissolved; either as result of a judicial decision, or as result of free will. In this regime, community property is commonly owned by the spouses. It is not similar to co-ownership because the spouses (joint owners) do not possess a share in the property, but are full owners of the community property.

Colombian law also recognises ‘common law’ unions under ‘de facto marital union’ provisions. Opposite-sex couples that have cohabited together for at least two continuous years may request the declaration of the existence of de facto marital union. As of 2007, both opposite and same-sex couples who have cohabited together for at least two continuous years may request the declaration of the existence of de facto marital union. This declaration implies the presumption of the existence of a community of property regime (as applicable to married couples), and leads to the distribution of the common property. This declaration may be made by a family judge or by mutual consent of the couple before a notary public or a duly authorised conciliation centre.

Upon the death of one of the spouses, the ‘marital portion’ is the portion of the estate that the law assigns to the surviving spouse or permanent partner lacking the necessary means for a congruent subsistence. Taking into account the existence of any legitimate descendants, the widower or widow will be counted among the children and receive as marital portion a share equivalent to the legitimate rigorous corresponding the legitimate descendants.

The ‘legitimate’ is that part of the estate of a deceased individual that the law assigns to the legal heirs. The following are legal heirs: children (personally or represented by their descendants) and ancestors. The legitimate is obtained by dividing half of the inheritance between all legitimate descendants and the widow or widower. The legal heirs converge to the succession and are excluded and represented according to the order and rules of the intestate succession.

Cayman Islands Small Flag Cayman Islands

There is no special regime for matrimonial property in the Cayman Islands. Currently, the Cayman Islands do not recognise civil partnerships.

Germany Small Flag Germany

German Family Law provides for three different matrimonial property regimes: the community of surplus (“Zugewinngemeinschaft”), the separation of property (“Gütertrennung”) and the community of property (“Gütergemeinschaft”). In absence of a prenuptial agreement the rules of the community of surplus apply. In this case the surviving spouse (or civil partner) inherits

  • 50% of the estate if relatives of the first degree survive and
  • 75% if (only) relatives of the second degree or grandparents survive.

In case of community of property the surviving spouse (or civil partner) receives

  • 25% of the estate if relatives of the first degree survive and
  • 50% of the estate if (only) relatives of the second degree or grandparents survive.

In case of separation of property the surviving spouse and each child inherit in equal shares if one or two children of the deceased are entitled as heirs on intestacy together with the surviving spouse.

Singapore Small Flag Singapore

The Women's Charter governs the division of matrimonial property. The courts have broad powers to order division / sale of matrimonial property upon legal termination of a marriage, with the final outcome depending largely on facts.

Subject to exceptions, a Will is revoked by the testator's marriage. A divorce, on the other hand, does not revoke a Will. Where an individual dies without a valid Will, the surviving spouse will be entitled to a share of the estate pursuant to the Intestate Succession Act.

Civil partnership is not a recognised legal concept in Singapore.

Portugal Small Flag Portugal

There are special regimes for matrimonial property (separation of property, total communion of goods and communion of goods after marriage), although such regimes do not alter the mandatory succession regime of the spouse quota.

France Small Flag France

Opposite sex as well as same sex couples may conclude a contract to organise their life in common (PACS). They are not treated as spouses for succession law purposes but benefit, under certain conditions, from a total inheritance tax exemption.

A marriage may also be contracted by opposite sex couples as well as same sex couples. Spouses can enter into a contract before marriage to regulate their property rights. The matrimonial regime may also be modified during the marriage. Spouses can freely choose their regime from a strict separation of assets to a universal community regime for all assets they own.

The applicable matrimonial regime should be taken into consideration before applying the succession rules.

Couples married without choosing a matrimonial contract fall under the regime of “community reduced to acquisitions”. Movable and immovable assets owned by each spouse upon the marriage and those gifted and inherited during the marriage remain the sole property of the original owner. Common property is limited to assets acquired by the couple during their marriage. Each spouse equally holds 50% of common property which can freely be transferred by Will.

Liechtenstein Small Flag Liechtenstein

In principle, marriage does not have any effect with respect to property: each spouse keeps his or her sole property and everything obtained during marriage only belongs to the spouse who acquired it (§ 1237 Civil Code; in the event of divorce, other rules apply). It is, however, possible that the spouses contractually agree on joint property ("Gütergemeinschaft"). If joint property is contractually agreed on (usually only for the event of death), the surviving spouse gets half of the joint property and the succession law only applies with respect to the other half of the joint property (§§ 1233 ff. Civil Code).

Furthermore, the surviving spouse can claim the statutory advance bequest ("gesetzliches Vorausvermächtnis") that is not included in the intestate share. This includes the right to continue residing in the matrimonial home and using the household effects (§ 758 Civil Code). Finally, under certain circumstances, the surviving spouse may have a maintenance claim against the heirs to the extent of what he or she was entitled to while married to the deceased, limited, however, to the value of the estate (§ 796 Civil Code). If the spouse marries again, the heirs’ obligation to pay maintenance terminates. Everything that the spouse has received out of a compulsory share, out of intestate succession, or any other bequest is taken into account when calculating a possible maintenance claim against the heirs.

Mexico Small Flag Mexico

Yes, it does exist a special regime for matrimonial property, which is a marital partnership, regulated under the civil law, which is a local matter and the regulation may vary from state to state within Mexico.

The following analysis is according to the Mexican Federal Civil Code, which states that the marital partnership shall be ruled by the prenuptial agreement, which are the agreements between spouses to incorporate and rule the marital partnership under the marriage agreement, and on its defect, by the Law.

According to article 205 of the Mexican Federal Civil Code, in the event a spouse dies, the one who remains alive shall continue with the possession and management of the goods that constitute of the marital partnership, with intervention of the representant of the succession, until the verification of the partition of the goods subject of the martial partnership.

Regarding civil partnerships (understood as civil entities governed by the Mexican Federal Civil Code), one of the causes of dissolution involves the death of a partner with unlimited responsibility for the social compromises, except if the incorporation deed bylaws state that the partnership shall continue with its inheritors. Likewise, civil partnership shall also be extinguished by the death of the industrial partner, provided that his industry has originated the partnership.

Brazil Small Flag Brazil

The default matrimonial regime is the ‘partial segregation of assets’, where all the assets onerously acquired on the constancy of the marriage should be considered common assets and each spouse has 50% ownership of it. Other possible regimes, elected at the moment of marriage, are: (a.) ‘total segregation of assets’ where the assets are always particular to each spouse; and (b.) ‘total common assets’, where the assets are always considered common to both spouses.

All assets that the deceased has earned by heritage or donation (gift assets) will never be considered common of the couple, unless they are married on the ‘total common assets regime’, but should be considered on the calculation of the estate to be distributed.

According to each regime and type of asset, the succession will be affected in a way that the estate reflects only the fraction of the couple assets that individually belongs to the deceased.

Updated: May 30, 2019