Regime of community and separate property in marriage

Are you thinking of getting married? Then you have probably heard about separate and community property. However, you may not know exactly what they are and what happens to them in the event of separation, divorce or death of one of the spouses. Here we would like to clarify all these questions and a few others for you.

Important aspects in relation to marriage

Whenever two people get married they have to choose a matrimonial property regime. With the exception of the Balearic Islands and Catalonia, by default the regime of community of property is usually chosen. In the two cases mentioned above, the prevailing regime is the separation of property. In any case, the spouses may choose between one or the other before getting married.

The difference between separation of property and community of property when acquiring property is as follows:

• Separation of property regime. In this case, one of the spouses may acquire a property and put it in his/her sole name. In the event that the acquisition is made jointly, the percentage of co-ownership shall be specified (70-30%, 80-20%, etc.).
• Regime of community of property. If this option is chosen, all property acquired by the married couple after the relationship is formalised will be owned 50/50. It does not matter how much each party has contributed to the purchase.

It should be noted that, as long as there is an agreement between the parties, a couple can change from the community of property regime to the separation of property regime (or vice versa) at any time. All that is necessary is to register a document called "capitulaciones matrimoniales" with a notary.

What are separate property?

However, what happens with assets that one of the spouses acquired before the marriage? According to the Civil Code, they cannot be considered as community property, but as separate property. Specifically, Article 1346 refers to the following:

All property acquired by the spouses separately before the marriage shall continue to belong exclusively to each of them.

Property acquired after the celebration of the marriage provided that it was financed with private property.

• Clothing and personal utensils for everyday use.
• Assets acquired or sold by way of a purchase agreement.
• Inherited or donated assets, provided that they become part of the assets of one of the spouses free of charge.
• Rights that are not transferable, such as a social security pension or rights related to intellectual or industrial property.
• Compensation obtained for the purpose of compensating a physical or psychological injury suffered exclusively by one of the spouses.
• Equipment, tools and implements necessary for the profession of one of the spouses, with the exception of equipment, tools and implements used by one of the spouses through a joint operating company.

So, are assets acquired before marriage community property? As stated in the Civil Code, the answer is no.

What happens to community and separate property when a marriage is dissolved?

A marriage, regardless of the economic regime chosen, can only be dissolved for two reasons. The first is by divorce of the spouses, whether by mutual agreement or contentious. The other is by the death of one of the partners.

In both cases, determining which assets are separate is essential. It is necessary to determine them both to liquidate the community of property and to proceed to the distribution of the inheritance. But how is it possible to know what they are? A confession by one of the spouses or the presentation of title deeds or other documents proving the private nature of the property is sufficient.

Who inherits separate property in a marriage with children?

This is a particularly complex issue as it is not always easy to determine which assets are separate and which are not. There are very clear examples, such as a house acquired by one of the spouses before the marriage. However, if it was mortgaged and continued to be paid for after the marriage, part of it can be considered as community property.

In any case, let us start from the assumption that the property is 100 % private. In the event of the death of the owner (mother or father), the children and descendants in general are the legitimate heirs of the property. In its entirety. The surviving spouse has no right to it.

What happens if there is a private family home in separation of property or community property?

This is exactly the same. Even if it is the family home, if it is a private home, it belongs exclusively to one of the spouses. Therefore, in the event of divorce, he or she will keep it. In the event of his or her death, it will be inherited by the descendants.

This is not the case if the family home is a community property. The reason? In this case, 50% of the ownership will be held by each of the spouses. So, if one of them dies, the heirs will be able to dispose of 50% of the property of the parent who died. The other 50% will remain with the other spouse.

Separate property in the inheritance of a married couple without children

It depends primarily on whether or not the deceased has made a will before his death. If so, it will be necessary to determine how the distribution is to be made. In the opposite case, however, the heirs will be his ascendants, i.e. his parents.

But what happens if the deceased has no ascendants? In this case, the next in line of succession is the widowed spouse. If he or she has also died, it is the siblings who will be considered the legitimate heirs.

All in all, the private property in marriages under the community of property regime is a bit complex. Nevertheless, we hope that we have cleared up any doubts you may have. If not, please do not hesitate to contact us.