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Attorney Milena Nowicka
Statutory matrimonial community of property vs. a prenuptial agreement
What is a prenuptial agreement?
How does separation of property affect inheritance?
Inheritance in a marriage under a regime of separation of property
Inheritance in the absence of a prenuptial agreement
Prenuptial agreements and the inheritance of debts
A prenuptial agreement, i.e. a special contract concluded with one’s husband or wife, is relevant to the financial situation within a marriage. It is commonly believed, however, that it is also of importance for inheritance matters. Some people assume that under a regime of separation of property they will not inherit from their spouse at all, or that their share of the estate will be significantly smaller than if a community of property existed. What is the legal reality? You will find the answers in this article.
Under statutory provisions, a community of property arises upon the conclusion of a marriage. Consequently, if no action is taken, from that moment onwards, in addition to separate personal assets, the spouses will also hold joint marital property. Most items acquired, income earned, and assets accumulated after the marriage will be included in that joint property.
Only certain categories of assets will continue to form part of the spouses’ personal property even after the wedding. These are assets expressly indicated by law, such as inherited property or most gifts received.
In simplified terms, under a statutory community of property, assets owned prior to the marriage remain personal property. By contrast, assets acquired during the marriage will, in most cases, constitute joint marital property.
What if these default rules do not suit you? The spouses are entitled to modify them—and this is where a prenuptial agreement comes into play.
A matrimonial property agreement allows spouses to alter the default rules governing joint marital property—either by extending the scope of assets included in the community or, conversely, by introducing additional limitations.
In practice, when spouses enter into such an agreement, it is most often for the purpose of establishing full separation of property. It is in this context that the term “prenuptial agreement” is most commonly used. If such an agreement is concluded prior to the wedding, the marriage will not affect the spouses’ financial situation in any way. Each spouse will retain only their own personal property, and no joint property will arise.
It should be noted, however, that a prenuptial agreement may also be concluded during the marriage, even if the spouses were previously subject to a statutory community of property regime.
Once the practical meaning of a prenuptial agreement is understood, the question remains as to its impact on inheritance. Many people believe that concluding a prenuptial agreement also deprives a spouse of the right to inherit in the event of the other spouse’s death.
This belief may stem from the fact that a regime of separation of property also arises, inter alia, as a result of a court judgment granting a divorce or legal separation. In such cases, the former spouse is indeed excluded from statutory inheritance. This exclusion, however, does not result from the separation of property itself, but from the divorce or legal separation. The law expressly provides that a divorced spouse or a spouse remaining in legal separation does not inherit by operation of law from the former husband or wife.
So how does a prenuptial agreement actually affect inheritance? This is best explained by comparing two scenarios: the death of one spouse in a marriage with joint property and the death of one spouse in a marriage governed by a prenuptial agreement establishing separation of property.
If the spouses were subject to separation of property, the marriage did not affect their financial affairs in any way. After the wedding, each spouse continued to hold only their own personal property. This included everything acquired before the marriage as well as everything acquired during the marriage.
Upon the death of a spouse, their entire personal property constituted the estate. Assuming that the deceased did not leave a will, the estate would, in the first instance, be inherited by the surviving spouse and the children. If the deceased had drawn up a will, inheritance would proceed in accordance with the testator’s last will.
Assume, however, that there was no will and that the deceased owned personal property valued at PLN 300,000. In addition to a spouse, the deceased had two children. Under statutory succession rules, the estate would be divided equally among the three heirs. The spouse would therefore inherit PLN 100,000, and each child would inherit the same amount.
Let us now consider how the situation would look if the spouses had not established separation of property either before or during the marriage. In such a case, the husband and wife would still hold personal property, but most assets acquired after the wedding would be included in their joint marital property.
Following the husband’s death, it would therefore be necessary to take into account both his personal property and his share of the joint marital property. Let us assume that the personal property of the deceased was valued at PLN 100,000 and that the joint marital property amounted to PLN 400,000.
Upon the death of one spouse, the community of property automatically terminates. It must therefore be determined what portion of the joint property belonged to the deceased. As a rule, it is assumed that each spouse holds an equal share in the joint property, regardless of differences in income. This means that, in principle, one half of the joint property is subject to inheritance.
Accordingly, the estate would again amount to PLN 300,000 (PLN 100,000 in personal property and PLN 200,000, i.e. half of the joint property). The estate would once more be divided among the same three heirs. The spouse would again receive PLN 100,000. In addition, the surviving spouse would of course retain exclusive ownership of the other half of the joint marital property, corresponding to her own share in the former community.
As explained above, entering into a prenuptial agreement does not affect inheritance. It applies solely to the financial relationship between the spouses during their lifetime. Such agreements are often concluded in order to protect a spouse from the other spouse’s debts—for example, where one spouse operates a sole proprietorship and runs a risky business. Under a regime of separation of property, each spouse is liable for debts exclusively with their own property (provided that creditors were aware of the separation of property at the time the obligation was incurred).
How does this relate to protection against inheriting the deceased spouse’s debts? In this respect as well, a prenuptial agreement is of limited relevance. Even if, due to the agreement, the deceased was liable for obligations only with their personal property, it is precisely that personal property which becomes subject to inheritance.
It must be remembered that an estate consists not only of assets but also of liabilities. A prenuptial agreement does not reduce the risk of inheriting debts. The heir must therefore either accept the inheritance in its entirety (including any liabilities) or reject it in full. Alternatively, liability may be limited to the value of the inherited estate by accepting the inheritance with the benefit of inventory.
If your deceased husband or wife had debts and you are uncertain which decision would be most advantageous, it is advisable to consult an attorney specializing in inheritance law. This will allow you to determine the most appropriate course of action.
