28 October 2016

Sharing your own assets with a spouse or partner: can you do it?

Sometimes you may wish to have your partner or spouse share in your assets, so that shares, money, a property or other items of value belong to both of you. Sharing your assets can be done in different ways.

NOTE This article is out of date. The new inheritance law of 1 September 2018 has many consequences for matrimonial law and for inheritance law itself. Bear this in mind!

1. Marriage contract

Through a change in the marriage contract (by notarial deed), an asset can be brought into the marital property community so that it belongs to both spouses, half each.

 If there is no marital property community because the spouses are married under the system of separation of property, there is the possibility of adding a limited marital property community to this system of separation of property. Individually owned assets can then be brought into this limited marital community so that they belong to both spouses, half each.

Bringing certain assets into the marital community has the advantage that an option clause can also be added so that, on the death of one of the spouses, these joint assets can be allocated to the survivor in full ownership if he or she so wishes.  An option clause of this kind relates only to joint assets, not to undivided assets.

All that is payable when an asset is brought into the marital community in this way is the fixed registration fee of EUR 50.

NOTE The new matrimonial law of 1 September 2018 has a lot of consequences for this! Read more about this here

2. Gifting

Gifting half or part of your own assets to your spouse ensures that he or she also acquires ownership of these assets, in the same way as his or her own assets.

The disadvantage is that a gift between spouses may be revoked instantly.  If the relationship fails, there is therefore a risk that the spouse will reclaim the gifted assets.

Gift tax is payable on gifts between spouses:

  • 3% for movable property (with the exception of the hand-to-hand gift or gift by bank transfer, provided the giver lives for three years after the date of the gift);
  • between 3% and 27% for real estate.

NOTE The new inheritance law of 1 September 2018 has a lot of consequences for gifts! Read more about this here

3. Selling

Partners who are not married can sell goods to each other.  However, this is forbidden between spouses, who in principle cannot enter into a purchase or exchange contract with each other (except for four statutory exceptional cases, which rarely occur in practice).

No registration tax is payable on the sale of movable property, while a rate of 10% applies to the sale of real estate in Flanders.

NOTE The registration rates were revised in 2018 to a uniform 7% Read more about this here

Conclusion

It makes a difference whether the parties are married or not before a transfer of assets from one partner’s property to that of the other.

The safest and cheapest solution for married couples is to amend the marriage contract. For cohabiting couples there is a choice between gifting or selling.

Legal

Estate Planning

Do you have any further questions about this? Then be sure to contact our advisors! Let's talk!

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