The community property regime in a marriage is delimited in private and community property in the inheritance. Private assets are those that belong only to each spouse and marital assets are those that belong to the family group.
The law in Spain establishes that the assets received from the distribution of an inheritance are private. Therefore, their ownership belongs only to the person who receives them, even if they are married under community property.
What are private property?
In the first place, we want to define the concepts of private and community assets of an inheritance.
Private assets as described in Spanish law are those that belong only to one of the members of the married couple.
Article 1346 of the Spanish Civil Code lists the assets that are considered private.
These assets are not affected by the community property regime that is established at the time that two people marry in Spain.
Each marital member can dispose of her private property as he wishes, because private property gives him that right. These assets in case of divorce do not have to be divided.
Marital assets are made up of those that already belonged to one of the spouses before marrying under the marital regime.
Article 1346 of the Civil Code explains what are the private assets that belong to each of the spouses, they are:
1. The goods that you acquire after the marriage free of charge.
2. The rights, goods and animals that belonged to him when the community of property began.
3. Compensation for damages caused to the person of one of the spouses or to their private property.
4. Goods acquired in substitution or at the expense of private goods.
5. The assets acquired by right of withdrawal belong to only one of the spouses.
6. The rights and assets of the person.
What are marital property?
Marital property is owned by both spouses under equal conditions.
That is, they are used in common and in case of divorce or separation they have to be shared equally.
Article 1347 of the Spanish Civil Code describes the assets that are considered private property:
1. Assets obtained through the work or business of either spouse.
2. The interests, fruits or income originating from marital and private property.
3. Assets acquired by right of withdrawal of a community nature, even if they are acquired with private funds. In this case, the company is indebted to the spouse for the value paid.
The companies and businesses constituted by any of the spouses with the common assets during the life of the company.
Functioning of the community property regime?
When a couple marries, the matrimonial property regime comes into force. This is the community property regime throughout Spain with the exception of the Balearic Islands and Catalonia.
The marital property regime in Catalonia is called separation of property and allows property acquired after the marriage to be owned solely by the spouse who acquired it.
In the event that assets are acquired jointly, co-ownership is explicitly established and the percentage that belongs to each spouse is delimited. Unlike the community property regime where all the assets acquired after the marriage belong to the spouses in a shared way.
Article 1344 of the Civil Code provides that the goods purchased after the marriage correspond to 50% for each one. In case of separation or divorce, the assets belonging to the marriage will be divided in the same way, 50% for each spouse.
What happens to the marital property and inheritance of one of the contracting parties?
The assets that are received in inheritance are private, so they belong exclusively to the person who receives them. Whether he is married under community property, or if he receives them through a donation.
Therefore, any property that is received in inheritance is exclusive to the person who inherits it. Except when the testator expressly states in the will that the assets are received by the couple.
What is not considered separate assets are the benefits during the marriage that could be generated by the assets received in inheritance by one of the spouses.
These benefits are of a community nature, so in the event of separation or divorce, 50% of said benefits corresponds to each spouse.
What happens when an inheritance is received during the marriage?
When assets are inherited while married, they belong only to the inheriting spouse regardless of the economic regime established in the marriage.
This regulation has an exception that is for the case in which the testator clearly states that the inheritance is for both spouses.
This must be specified in the will, that is, this document must clarify that the inheritance must be received by marriage.
At Audacia Abogados we are experts in inheritance, if you have any questions about it, call us.
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