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

Private Client (3rd edition)

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.

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.

Under the community property regime, the assets are co-owned by the spouses, so that each of them has an undivided share of the whole. Assets that fall within the community property regime can be sold or gifted only with the consent of both spouses.

The community property regime includes all assets (and related income) received or purchased during the marriage (separately or together) with a few significant exceptions, such as:

(a) Inheritance and gifts in favour of one of the spouses (unless the will or deed of gift provides that the assets must fall within the community property regime);

(b) Assets of one of the spouses for personal use;

(c) Professional and business assets of one of the spouses (except when a family business was created after the marriage and both spouses participate in the management of such business).

Cyprus Small Flag Cyprus

The Civil Partnership Law (184(I)/2015) legitimises the union between two individuals, regardless of gender. Contracting a Civil Partnership has respective effects and consequences as if a marriage was solemnized under the provisions of the Marriage Law (with the exception of adoption). As such, any reference included in any legislation of the Republic of Cyprus to "spouse" shall be interpreted as a reference to the Civil Partners of a Civil Union.

Marital status in Cyprus is considered to be a straightforward matter. Under the Regulation of the Spouses’ Property Relations Law (232/1991), a spouse can transfer anything registered in his/her name and obtained during marriage, and as such the proprietary independence is not being affected. Therefore, if an asset is registered in the name of the spouse, it can be freely transferred or disposed to any third party without any restrictions.

In case of divorce or separation, the spouse may claim any contribution towards the increase of the property of the other spouse, provided that such contribution is duly evidenced. The contribution in the increase of the assets is deemed to be 1/3 of the increase, unless it’s otherwise proven.

Hong Kong Small Flag Hong Kong

a. There is neither matrimonial property regime nor a regime for property of a civil partnership in Hong Kong.

b. In the event of a divorce, matrimonial property will be divided by the equitable distribution method by reference to common law. “Equitable” means a division of assets according to what the court deems fair and reasonable having regard to all the circumstances of the case (section 7(1) of the Matrimonial Proceedings and Property Ordinance).

Mexico Small Flag Mexico

Mexican Law establishes a special regime for matrimonial property, under the name of marital partnership.

The general rules for marital partnership are regulated in each of the state legislations, to the extent that this matter is governed under state jurisdiction.

In Mexico City, marital partnership shall be ruled by the prenuptial agreement, which establishes the patrimonial regime to which the property acquired during the marriage will be subject to.

Additionally, in the event a spouse dies, the one who remains alive shall continue with the possession and management of the goods that constitute the marital partnership, until the verification of the partition of the goods in accordance with the succession procedure.

Regarding civil partnerships (understood as civil entities governed by the Mexico City 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.

India Small Flag India

Goa is the only state in India that recognises the concept of matrimonial property i.e. property held as community property. The ownership and possession of the property acquired during marriage belongs to both spouses. However, property held by them prior to marriage may be declared to be their separate property through a deed/document which is executed under a seal. Upon the death of a spouse, the surviving spouse is entitled to half the share of the community property. The other half may be succeeded by the heirs of the deceased spouse or bequeathed (detailed in Question 12 above).

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 considered when calculating a possible maintenance claim against the heirs.

Monaco Small Flag Monaco

Civil partnerships are not recognized under Monegasque law at the moment. This could change in the future according to Bill n°974 pending before the Monegasque parliament.

According to this Bill, the surviving party to a civil partnership would be entitled to one year of free use of the main dwelling that is part of the deceased partner’s estate if that party actually lives in this dwelling unless provided otherwise in the decedent’s will. Additionally, gifts on death between civil partners would be taxed at the rate of 8%.

In Monaco, the legal matrimonial property regime is that of separation of property. Married couples can also select, by contract passed before a notary, to be subject to the community of property regime, or any other sui generis regime which is not contrary to public policy.

The difference of regime will not impact the succession rules but will rather determine what property is part of the deceased’s estate.

The surviving spouse is not entitled to forced heirship rights. Hence, he or she only receives from the available portion of the estate after the matrimonial regime has been liquidated.

Poland Small Flag Poland

In principle, under Polish family law, spouses are subject to statutory matrimonial property regime, unless otherwise agreed in a nuptial agreement. Under this statutory regime, all the assets acquired by one spouse or both spouses during the marriage are deemed to be jointly owned by them, specifically including earned income, income from each spouse’s joint property and sole property. Assets owned or acquired before entering into marriage are treated as each spouse’s sole property; this also applies to assets aimed to satisfy personal needs of the spouses, even if acquired during the marriage, or assets acquired through donations or heirship, unless otherwise explicitly indicated by the donor/testator.

Spouses are also entitled to amend the abovementioned rules by concluding a nuptial agreement and choosing one of the following regimes:

  • contractual matrimonial property;/li>

  • contractual separation of assets; and/li>
  • contractual separation of assets with equalisation of gained property.

By contractual matrimonial property regime, the spouses are entitled to broaden the statutory matrimonial property by adding certain assets, as jointly owned, which would otherwise be deemed the sole property of one of the spouses; however, that broadening may not include assets gained through donations or heirship, rights derived from joint ownership under specific regulations, intangible rights belonging to one of the spouses, claims for damages due to personal injuries or undue claims under income-earning activities.

The contractual separation of assets regime means that each of the spouses keeps sole ownership of both the assets acquired before the marriage and those gained during the marriage.

In the case of separation of assets with equalisation of gained property, the abovementioned rules apply, with this distinction that if this regime is terminated the spouse who acquired less gains on his sole property may claim equalisation of the gains. Where one of the spouses dies during effectiveness of such a matrimonial agreement, the equalisation takes place between the surviving spouse and the heirs of the deceased spouse.

Therefore, in the case of any joint property of the spouses, the surviving spouse gets upon succession half of the joint property and the inheritance law only applies with to the other half of the joint property.

Portugal Small Flag Portugal

The Portuguese civil code establishes three regimes to regulate marital property:

a) general community of estate – all combined property is considered joint;

b) estate subsequent to marriage – only property earned during the marriage is considered joint property (applicable by default);

c) separation of property between spouses.

The Portuguese civil partnership regime does not grant any special property regime between the couple. In addition, the surviving partner is not considered a forced heir. In the event of decease of one member of the couple, the surviving member has the right to live in the family house for a period of five years and has the pre-emption right on the sale of the family house.

Russia Small Flag Russia

A default regime for matrimonial property applies unless there is a marriage contract. Under the Civil Code the matrimonial property regime regards all property of spouses (in the officially registered marriage) as tenancy in common, meaning that the property belongs to spouses without a differentiation of shares. The standard succession procedure is followed upon the death of any of the spouses. Unless a will has been executed, inheritance will be carried out by operation of law, meaning that the right to the share in the common property first passes to the heirs of the first line of priority (with the widow (widower) belonging to the first line of priority).

There is no special regime for civil partnership.

Serbia Small Flag Serbia

There is a special regime for matrimonial property in the family law. Matrimonial property is a common undivided property of spouses created during the marriage through their work or other contributions. Civil partnership is not recognised by law. Unmarried partners who live together can create a common undivided property, which is then governed by the same rules as the matrimonial property.

Matrimonial property is managed jointly by the spouses, and they are free to enter into contracts governing the managing and disposing of such common property.

Matrimonial property must be taken into account also for the succession purposes. In determining the estate of the deceased, a spouse has a claim for division of the matrimonial property.

Switzerland Small Flag Switzerland

If a decedent leaves a surviving spouse, there is first a settlement of matrimonial property between the surviving spouse and the estate/heirs. The surviving spouse takes his/her share of matrimonial property and the share of the decedent forms part of the estate.

Swiss law provides for three matrimonial property regimes: (a) participation in the acquisitions, (b) community of property and (c) separation of assets. Spouses can agree on a matrimonial property regime or a variation thereof in a pre-/postnuptial agreement. Such agreements can have a material impact on the assets of an estate but must generally respect the protected shares of heirs. Swiss law recognizes matrimonial agreements entered into under the laws of the state of the spouses' foreign nationality or previous foreign domicile.

In the absence of a pre-/postnuptial agreement, the ordinary regime of participation in the acquisitions applies to spouses domiciled in Switzerland. Basically, the income generated from gainful activity and own assets during the marriage forms the basis for the so-called surplus, which is divided equally between the spouses. The settlement of matrimonial property is not necessary if the spouses have chosen the regime of separation of assets.

For civil partnerships, the ordinary property regime corresponds to the matrimonial property regime of separation of assets and no settlement of property claims between the civil partners is necessary. However, civil partners may agree in an asset agreement to divide their assets according to the provisions of the matrimonial property regime of participation in the acquisitions. In such case, a settlement of property must intervene before determining the estate of the deceased partner.

United States Small Flag United States

Under the US tax system, married couples are treated differently than non-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 had they filed 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.

Singapore Small Flag Singapore

Singapore adopts a deferred community approach where the matrimonial assets may only be divided once the marriage has been legally terminated (see section 112 Women’s Charter and BPC v BPB [2019] 1 SLR 608).

Matrimonial assets are defined under section 112(10) Women’s Charter as: (a) any asset acquired before marriage by either or both parties to the marriage which are ordinarily used or enjoyed by the family or which have been substantially improved during the marriage; and (b) any asset acquired during the marriage. Matrimonial assets excludes gifts and inheritance unless this is the matrimonial home or an asset which has been substantially improved during the marriage by the other party. Gifts between spouses are, however, considered as matrimonial assets.

Civil partnerships/same-sex marriages are neither permitted nor recognised in Singapore (see section 12 of the Women’s Charter Cap. 353).

Israel Small Flag Israel

The Israeli Property Relations Between Spouses Law, 5733 - 1973 regulates the division of matrimonial property, by distinguishing between spouses that have a property agreement (either prenuptial or postnuptial), and those who do not:

(a) for spouses who do not enter into an agreement, the principle adopted by the law is that of “property equalisation”. In essence this principle means, that while the mere existence of marriage does not change the status of ownership of properties and the liability to obligations by each spouse, upon termination of the marriage, due to death of one of the spouses or separation, each spouse becomes entitled to half of the value of the spouses’ entire property (including future pension rights, retirement compensation, study funds, pension funds, and other savings), with the exception of: (i) properties owned by a spouse prior to the marriage, (ii) properties gifted to or inherited by a spouse during the marriage, and (iii) payments paid to a spouse by the Israeli National Insurance Agency or in accordance with any law relating to compensation for corporal damage or death.

(b) For spouses who do enter into a property agreement – their legal arrangements prevail, as the law recognizes the spouses’ right to freedom of contract. However, in order for such an agreement to be valid and enforceable, the agreement (and any change thereof) ought to be approved by the competent court, after the court has been convinced that both spouses entered into the agreement out of their free will and that they understand its meaning and implications. In the case of a prenuptial agreement, a notary may replace the court, if the spouses so wish, and if executed during the marriage ceremony, the marrying person, if authorised to do so, can approve the agreement.

However, if there is an evident contribution by one spouse to the other spouse’s property, the courts tend to regard the assets as joint property (that is as if it had been acquired together and owned jointly with the spouse during marriage). For example, a wife can claim 50% of her husband's pre-nuptial apartment, if she can prove that she contributed to the purchase of the apartment by having paid a certain percentage of a loan taken to finance the purchase of the apartment, and/or by having paid for the apartment’s renovation or maintenance.

It should be noted that during the life as well as upon death, each spouse is free to transfer, without any restrictions, all of his or her property, including any and all (a) pre-nuptial property, (b) post-nuptial property inherited or received as a gift, as well as (c) his or her part of the marital property acquired together with the spouse during the marriage.

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.

Germany Small Flag Germany

Three matrimonial regimes are possible:

  • Under the community of accrued gains, the spouses’ property does not become common property. However, accrued gains, that spouses acquire during the marriage are equalised if the marriage ends. The community of accrued gains regime applies, when there is no marriage contract in effect. This regime affects succession in that the surviving spouses share is increased by a quarter of the estate.
  • The spouses can by contract agree on a separation of assets. The surviving partner’s statutory share of the estate depends on the number of children the deceased had. In case of one child, the surviving partner inherits ½, in case of two children, ⅓, and more than two children he or she always inherits ¼. If there are no children, the surviving spouse will receive the legal share.
  • In case of a joint property regime, which can also be agreed upon by contract, the deceased’s spouses share in the common property remains part of the estate. Thus, general provisions apply.

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.

Updated: January 17, 2020