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

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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 then 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.

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.

Israel Small Flag Israel

For couples who married prior to January 1974, the assumption of joint property applies. For couples who married after that date, the Balance of Resources according to the Property Relations Law between Spouses applies. Generally, if the deceased died intestate, the decedent’s spouse (including a common-law spouse) is entitled to all movable property, including a car that was part of the common household regime. Any additional share of the estate depends on the other surviving heirs. The Succession law does not derogate from a spouse's rights under matrimonial law.

Greece Small Flag Greece

A special regime is applicable both for matrimonial property as well as for civil partnerships if the marriage [lasting a minimum of 3 years] is dissolved and the spouse’s property has been increased by means of direct or indirect contributions of the other spouse.

It is assumed that such contribution amounts to 33% of the property’s increase, unless proven otherwise.

The increase in the spouse’s estate excludes what was obtained via donation, inheritance, legacy or disposal of the proceeds from such causes.

Apart from the notes made in question 12, there are no special matrimonial rules applicable in succession.

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.

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.

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.
  • 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.

British Virgin Islands Small Flag British Virgin Islands

There is no special regime for matrimonial property in the BVI and the domestic laws of the BVI law do not yet recognise civil partnerships.

New Zealand Small Flag New Zealand

Marital property, known in New Zealand, as relationship property, is regulated by the Property (Relationship) Act 1976 (“PRA”).

Relationship property claims may be brought by persons who are married, in a civil union, or a de facto relationship. There is no difference as to whether the relationship is homosexual or heterosexual. Broadly, all property obtained during the relationship is divided equally. In respect of property which is brought into the relationship, an assessment will be made of any contributions the other party has made to the property after it was introduced.

A domestic relationship property agreement drafted according to the requirements of the PRA will be recognised in New Zealand. Foreign prenuptial agreements are not recognised in relation to New Zealand residents.

The PRA also applies when one of the couple dies. In that case, the surviving spouse or partner has the choice of either:

  • having the relationship property divided under the rules in the PRA (by making a claim), or
  • receiving whatever that spouse or partner is entitled to under the deceased's will or, if there is no will, under the statutory "rules of intestacy"

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.

Updated: December 8, 2017