Sharing of assets between spouses after death: how is the marital portion calculated?

Sharing of assets between spouses after death: how is the marital share calculated? This is the question that follows the initial shock and bureaucracy. The correct answer avoids injustices, reduces conflicts, and speeds up the inventory process.

In this practical guide, we explain how the division of assets between spouses works after death, how the marital portion is calculated for each matrimonial property regime, what documents to gather, and what steps to follow to reach a fair and legal solution.

The essentials in a few lines.

When we talk about the division of matrimonial property after a death, the calculation of half-share It is the first technical decision of the inventory. First, the matrimonial property regime is dissolved; only then is the inheritance opened.

The surviving spouse receives their half share, and the inheritance is formed from the remainder belonging to the deceased. From here, the rules of intestate succession apply, and if one exists, the will.

Key concepts before doing sums

Before proceeding to numbers, clarify three simple ideas that determine the division of assets between spouses upon death and how the marital share is calculated.

• Marital property regime joint ownership of acquired property, separation of property, or general community property. The regime defines which assets become joint marital property and which remain the separate property of each spouse.

• Half share It is the half that belongs to each spouse in common property. It is calculated before inheritance and should not be confused with the hereditary share.

• Distinct heritages: There are assets belonging solely to the deceased and joint assets of the couple. Only the deceased's share goes into the inheritance after the division of marital property.

What does the Civil Code say?

The Civil Code determines what is private property and common property and how the joint ownership is dissolved upon death. In a community of acquired property regime, income and onerous acquisitions during the marriage are included in the joint ownership; property owned prior to the marriage and that received by donation or inheritance are considered private, among other things.

Under a separation of assets regime, each spouse retains what belongs to them. In a general community property regime, everything is shared,.

Here's how to calculate the 'meação' (share) in a community of acquired property: In a community of acquired property regime, all assets (and debts) acquired by either spouse during the marriage are considered common property. Upon dissolution of the marriage (through divorce or death), these common assets are divided equally between the spouses. Here's a simplified breakdown of the calculation: 1. **Identify Joint Assets:** List all assets (property, savings, investments, vehicles, etc.) that were acquired by either spouse during the marriage. 2. **Identify Joint Debts:** List all debts incurred by either spouse during the marriage. 3. **Calculate the Net Joint Estate:** Sum the value of all joint assets and subtract the total of all joint debts. This gives you the net value of the common property. 4. **Divide the Net Joint Estate:** The net joint estate is then divided equally between the spouses. Each spouse is entitled to 50% of this net value. **Important Considerations:** * **Separate Property:** Assets owned by each spouse *before* the marriage, or those received as gifts or inheritance *during* the marriage by one spouse, are generally considered separate property and are not subject to division. * **Management of Assets:** While both spouses have a share in the common property, the management and administration of these assets can vary depending on the specific legal framework and any agreements. * **Debts:** If one spouse incurs a debt for the benefit of the family, it is generally considered a joint debt. However, debts incurred for personal gain without the other spouse's consent might be treated differently. * **Professional Advice:** This is a general explanation. The specific calculation and legal implications can be complex and may depend on individual circumstances, marital agreements, and the laws of the jurisdiction. It is always advisable to seek legal counsel from a solicitor or lawyer specializing in family law for precise advice.

It is the supplementary and most frequent regime. To make the calculation of the division of assets between spouses after death practical, the calculation of the moiety follows this sequence.

1. Identify common and separate property

• Common salaries and income earned during the marriage and assets purchased with those earnings.

• Own assets prior to marriage, individual gifts and inheritances, as well as personal effects.

2. Assess and sum the value of common goods

• Real estate, bills, vehicles, investments, and other assets acquired during the marriage must be valued as of the date of death.

3. Deduce the common liabilities

• Loans taken out by the couple, communal debts relating to the shared home, and other joint liabilities.

4. Divide by two

• The net result is divided into equal parts. This half is the surviving spouse's moiety. The other half, belonging to the deceased, forms part of the inheritance.

How is the marital share calculated in a separation of assets?

In separation, the division of assets between spouses after death is simplified. As a rule, there is no joint property, because there is no common estate.

Each asset remains with its owner. Only assets that were in the name of the deceased enter the inheritance. Adjustments may be made when one party has paid the other's expenses without a common cause.

How is the moiety calculated in a general community of property?

In general community, all that each person had before the marriage and what they acquired afterwards is common, with legal exceptions.

In practice, the division of assets between spouses after death is made by calculating the total value of the joint assets and dividing them equally. The surviving spouse's moiety corresponds to half of the total common estate; the other half forms the inheritance.

Specific assets and frequently asked questions in inheritance splitting

To avoid confusion in the division of assets between spouses after death, the calculation of the marital share must consider the particularities of certain assets.

• Family home In community of acquired property and general community, it is usually quite common. It is assessed, the mortgage credit is deducted, and it is divided. In separation, it belongs to whoever is the owner.

• Bank accounts Balances built up with income from the marriage are, in principle, communal. Balances from before the marriage or from inheritances are personal.

• Inheritances and gifts received by one spouse: These are separate assets, even if they have been converted into another asset. If the couple invested joint money into a separate asset, there might be compensation.

• Companies, shares and stakes: In the communion of acquired property, the share can be individual, but the appreciation generated from the couple's work and income may be reflected in compensation.

• PPR, funds and insurance The treatment depends on the origin of the funds and the ownership. It is important to prove dates and the source of the deposits.

To further investigate cases with indivisible assets, visit division of indivisible assets.

What constitutes half and what is the legitimate share, and how do they relate to each other?

In the division of assets between spouses upon death, the calculation of the marital share intersects with the legal share of forced heirs. First, the marital share is determined; then, the legal share is applied to the assets remaining in the inheritance.

If there is a will, only the disposable portion can be freely allocated by the deceased. Consult the rules on the balance between lifetime gifts and final distribution at will or legal inheritance and in division of assets under a will.

Taxes and deadlines to consider

The division of assets between spouses following a death, and the calculation of marital property rights, also have fiscal and procedural implications. We set out three practical alerts below.

• Stamp duty the surviving spouse is exempt from inheritance tax but deadlines for declaration must be met. See guidance at Inheritance tax.

• Communication to banks and insurers: Deliver certificates and request balances as of the date of death. Prevents undue transactions and prepares the inventory.

• Inventory calendar Predictability increases with document organisation. For realistic expectations, read How long does the inheritance process take?.

5 common errors that distort joint ownership

Avoiding these pitfalls saves months of litigation. Each point has a brief explanation to guide you.

1. Confusing community property with an inheritance share The spouse's share comes out before the inheritance. The heir's portion is the heir's share of the deceased's estate.
2. Disregard the property regime: Without the correct marital property regime, the calculation will fail. Please confirm the antenuptial agreement or the legal regime applied.
3. Forget compensation: Works, constructions, and amortisations paid for with joint funds on personal assets can generate compensation between spouses.
4. Lack of reviews: Without current values and documentation, the ownership map becomes contestable.
5. Negotiate without written record Verbal agreements create different memories. Formalise it in writing.

To manage blockages, remember challenges to the division.

Essential documents to calculate and prove the marital property share

A good appraisal speeds up the division of assets between spouses after a death. The calculation of the marital share involves having the right file.

• Death certificate and marriage certificate with property regime: they prove the death and the marital status.

• Certificate of will or of absence of will: clarify whether there are any last will and testament provisions that affect the disposable portion.

• Records and evaluations Property certificates, land registers, property and company valuation reports.

• Credit statements and plans shows balances and liabilities as at the date of death.

• List of donations and works Identify relevant interventions for offsets.

When to seek professional support?

The division of assets between spouses after death and the calculation of marital shares requires a methodical approach when there are businesses, valuable real estate, or family disputes.

If you need technical advice, speak to a Solicitor. If you are looking for comprehensive support, count on our team of Probate and inheritance lawyers to structure the assessment, negotiate and formalise the sharing safely and quickly.

Conclusion

In summary, the division of assets between spouses after death and the calculation of the matrimonial property share follows a simple logic: identify the regime, separate individual assets from common assets, value, deduct liabilities, and determine the matrimonial property share before opening the inheritance.

With the right documents, current figures, and clear proposals, the process becomes predictable and fair. If you want to move forward with confidence today, organise the file and set out a timetable now. Time is on your side when there is method and proof.