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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India Small Flag India

India does not have a special regime for matrimonial property. However, community property rules are incorporated in GSSNIP Act, which is applicable to the residents of Goa.

It is to be noted that if a marriage has been solmenised under the Special Marriage Act, 1954 then regardless of the faith followed by the individuals, the succession matters amongst such individuals is governed by Indian Succession Act, 1925.

Bulgaria Small Flag Bulgaria

As per the Bulgarian Family Code of 2009 there are three types of property regimes from which the spouses may choose either before or in the course of the marriage:

  • the statutory regime of community of property – assets acquired during marriage as a result of the joint contributions of the spouses belong jointly to both spouses even though they might been acquired on the name of only one of the spouses. Movable property acquired by one spouse during the marriage which serves for his/her personal use, profession or trade, is his/her personal property. The community property does not include assets acquired before the marriage or assets acquired by inheritance or by donation during the marriage.
  • the regime of separation of property – in this case the rights acquired by each of the spouses remain his/her ownership.
  • the contractual regime – spouses arrange their property relationships by means of a prenuptial agreement, where the principle of freedom of contract is limited. The may contain provisions only regarding the property, the consequences in case of a divorce, child support during marriage, etc. Any terms regulating personal relationships are not valid. The inclusion of arrangements concerning the legal consequences in case of death is also inadmissible and invalid. As a result the inheritance rules, in particular the forced heirship rules may not be avoided.

The property regimes regulating the spouses relationships are subject to registration with a registry kept by the Bulgarian Registration Agency.

Civil partnerships are not legally recognised in Bulgaria. Therefore, a will should be considered for the assets to devolve to the other partner.

Ireland Small Flag Ireland

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

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.

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.

Switzerland Small Flag Switzerland

Swiss law provides for a standard matrimonial property regime, namely participation in accrued gains (the most common regime); and two specific regimes, namely community of property and separation of goods.

Under the participation in accrued gains regime, each spouse retains and manages her or his own assets and acquisition during the marriage. On dissolution of the marriage by death or divorce, each spouse retains (i) her or his own assets brought into the marriage; (ii) his or her assets acquired during the marriage by gift or inheritance; and (iii) one-half of all acquisitions made by each of the spouses during the marriage.

Under the separation of goods regime, each spouse retains and manages her or his own assets during the marriage. On dissolution of the marriage, each spouse retains her or his separate property.

Under the community of property regime, each spouse holds her or his personal property and the other assets of the marriage are jointly owned and managed.

In case of death of one of the spouses, the dissolution of the matrimonial regime needs to be taken care of first in order to determine the estate of the deceased.

Switzerland recognizes also same-sex registered partnership.

UAE Small Flag UAE

N/A

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: March 6, 2018