Marriage and Matrimonial property

Donations between husband and wife

A donation is a contract under which a person, the donor, who makes the donation, disposes of an asset (or a right) free of charge, for the benefit of another, called the donee.

In the case of donations between husband and wife they are subject to a very restrictive legal regime that often makes them inconsequential.

The special legal regime for donations between married people is due to the special relationship and bonds created by marriage, on the one hand, but it also aims to prevent, through donations, circumventing the legal regime of marriage property. And in reality, spouses often try to circumvent their matrimonial property regime through donations made between them.

Let us look at the most relevant specificities of donations between married couples.


Donations and matrimonial property regimes

The property regime in which the spouses are married assumes, from the outset, capital importance with regard to donations.
Thus, and whenever one of the spouses is already 60 years old or more at the date of the marriage, it must be celebrated under mandatory separation regime.

Now, in these cases, donations between married people are not allowed, which will imply that they will be null and void if they.
In cases where the spouses are married in the separation regime (not mandatory, but freely chosen by the spouses), or in the communion regimes (Limited Community of Property or Community of Property), there may be donations between husband and wife.

Note, however, that it is only possible to donate own assets, but not common assets. Thus, for example, a spouse cannot donate his share in a certain common asset to the other spouse.

Free revocability of donations between married people

Whenever the donation between husband and wife is legally possible, it is important to emphasize that it can be revoked at any time by the donor spouse. And the revoking spouse doesn’t have to invoke any justification or reason, and the beneficiary spouse cannot oppose it.

With the establishment of the possibility of free revocation, the law aimed to ensure that donations between married couples are made without any pressure or imposition from the other spouse, thus being a true liberality in the strict sense of the term.

Expiration of donations between married people

Donations between husband and wife expire on the date of the divorce. This rule is often ignored by spouses who decide to make donations among themselves, believing that they will survive even in the event of divorce. Now, the truth is different, as we can see: donations expire if, by chance, the couple gets divorced.

Donations also expire in the event of the death of the donee (who receives the donation), if he dies before the donor (who makes the donation). It will not be so if the donor confirms the donation within three months after the death of the first.

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