The relationship between divorce and inheritances raises important questions for marriages with significant assets. What happens to an inheritance received during the marriage when a divorce occurs? Can a spouse claim part of inherited assets? How can you protect a family inheritance in the event of a future divorce?
These issues are particularly relevant in divorces involving professionals and executives, where inheritances may include shares in family businesses, high-value real estate, or significant artistic and financial assets. Poor management of these assets during the marriage can jeopardise their separate-property status and expose them to claims in the event of divorce.
This article examines how the matrimonial property regime determines how inheritances are treated in divorce, what happens to inherited assets depending on whether they are community or separate property, asset-protection strategies, and the specific features of Catalan law in this area.
Matrimonial property regime: the essential starting point
How inheritances are treated in divorce depends fundamentally on the applicable matrimonial property regime:
Community property regime
Under the community property regime (the default legal regime in most of Spain), there are two asset pools:
• Community property: belongs to both spouses in equal shares
• Separate property: belongs exclusively to one spouse
Article 1346 of the Civil Code expressly provides that assets acquired by inheritance or gift are separate property. Therefore, in principle, an inheritance received during the marriage is the heir’s separate property and is not divided in the divorce.
Separation of property regime
Under the separation of property regime (the default legal regime in Catalonia and, by agreement in marital agreements, throughout Spain), each spouse retains exclusive ownership of all their assets, including, of course, any inheritances received. There is no common pool to divide in the divorce.
Inheritances under community property: when they remain separate property
Although inheritances are separate property by law, they can lose that status in certain circumstances:
Commingling of assets
If inherited assets are mixed with community assets in such a way that it becomes impossible to identify or separate them, they may lose their separate-property status:
Example 1: You inherit €100,000 and deposit it into a joint current account where both salaries are also paid in, family expenses are paid, etc. If it is not documented which part corresponds to the inheritance, it may be treated as community property due to commingling.
Example 2: You inherit shares and sell them, investing the money to renovate the family home (community property) without documenting that the money was separate property. The improvement increases the value of the community asset without you being able to prove your separate contribution.
Investing inheritances in community assets
If you invest inherited money in buying or improving a community asset, the asset remains community property, but you are entitled to reimbursement when the matrimonial property regime is settled:
Example: You inherit €150,000 and use it as a down payment to buy the family home, which is registered in both names. The home is community property, but in the divorce you are entitled to recover the €150,000 before the remaining value is divided equally. It is essential to document the contribution in the purchase deed.
Income from separate property
A contentious issue: if you inherit a property that generates rental income, that income is community property under Article 1347 of the Civil Code, unless agreed otherwise. The property is separate, but the income it produces during the marriage is community property and is divided in the divorce.
Inheritances under separation of property: economic compensation
In Catalonia, even where the regime is separation of property, there is a specific mechanism that can affect inheritances: economic compensation for work under Article 232-5 of the Catalan Civil Code.
This compensation applies when one spouse has contributed, through work or assets, to the acquisition or improvement of the other’s assets, or when they have assumed the burdens of the marriage, enabling the other to increase their wealth.
Example: During the marriage you inherit a family business. Your spouse works unpaid in that business for 15 years, significantly helping it grow. Although the business is separate property by inheritance, your spouse may claim economic compensation for their contribution to the increase in value.
Strategies to protect inheritances
To properly protect an inheritance in the event of a divorce:
1. Maintain strict separation of assets
• Dedicated bank account: deposit inherited money into an individual account, not a joint account with your spouse.
• Exclusive ownership: if the inheritance includes real estate, keep sole ownership. Do not add your spouse as a co-owner.
• Comprehensive documentation: keep all documentation proving the inherited origin: deeds of acceptance, death certificates, wills, inheritance partitions.
2. Document any investment
If you decide to invest inherited money in shared assets (family home, joint business), document it formally: in the purchase deed, state that you are contributing X euros as separate property from an inheritance, identify the origin by reference to the deed of acceptance of inheritance, and expressly agree that you have a preferential right to reimbursement in the event of marital dissolution.
3. Specific marital agreements
After receiving a significant inheritance, it may be advisable to execute marital agreements expressly stating that those specific assets are separate property and that their income will also be separate, or to agree a separation of property regime if you were previously under community property.
Future inheritances: preventive protection
If you expect to receive a significant inheritance and want to protect it in the event of a future divorce, the testator may include specific clauses:
Legacy with explicit separate-property status
The will may expressly provide that the bequeathed assets will have separate-property status for the heir and that their income will also be separate. Although they are already separate by law, stating it expressly strengthens the evidence and makes challenges more difficult.
Fideicommissary substitution
The testator may provide that if the heir divorces, the assets pass to the heir’s children or to other designated substitutes. This is a complex arrangement that requires specialist advice, but it can be effective for family business assets.
What to do if you have received an inheritance during the marriage
If you have already received an inheritance and are considering divorce, or if your spouse has received one and you fear losing rights:
Complete asset inventory
Prepare a detailed inventory of all inherited assets: date of acquisition, current value, changes since the inheritance, investments made with those assets, and any contribution by the other spouse that could justify claims.
Supporting documentation
Gather all documentation proving the inherited nature: will or declaration of heirs, deed of acceptance and partition, bank certificates from the time of the inheritance, and any document showing the separation of assets maintained.
Frequently asked questions
Do I have to share with my spouse the inheritance I received?
No. Inheritances are separate property by law both under community property and separation of property. You only have to share if you have mixed them with common assets without properly documenting their origin.
What if I used inherited money to buy our home?
The home will be community property if it is in both names, but you are entitled to recover your separate contribution before dividing the remainder. It is essential that this is documented in the purchase deed.
Is the rental income from the inherited flat also mine?
Under community property, the income is community property even if the flat is separate, unless agreed otherwise. Under separation of property, the income is yours.
Can I protect a future inheritance in the event of divorce?
Yes, by entering into marital agreements before receiving it, or by asking the future testator to include specific separate-property clauses. Preventive advice is essential.
Do you need legal advice on this matter? At ACL Boutique Legal, we offer a personalised analysis of your situation and a legal response tailored to your case. You can contact us by email at info@aclboutiquelegal.com, or by phone at 931 820 179 or 671 377 204 (WhatsApp). Our offices are at Carrer del Tenor Viñas, 4–6, 3º–2ª, Sant Gervasi–Turó Parc, 08021 Barcelona, and we also see clients by appointment in Sabadell.