The Surviving Spouse's Options When the Matrimonial Regime Is Ambiguous
Els and Marc married in 1998 in Ghent without a marriage contract. In 2010 they signed a private deed, drafted by a financial adviser, converting their regime to separation of property with a clause stating that 'each spouse retains his or her own assets and the survivor may continue to occupy the family home'. Marc dies in 2024. His estate consists of a portfolio of 480,000 EUR held in his name, a jointly occupied house bought in 2002 and registered in Marc's name alone (450,000 EUR), and 60,000 EUR in a savings account in Els's name. Marc leaves two children from a first marriage. Els wants to keep the house and claims she is entitled to the entire estate under the 2010 deed. The children argue the deed is invalid and that Els must choose between usufruct of the whole estate and ownership of the marital share.
1. Is the 2010 private deed effective to change the matrimonial property regime, and what must the notary verify before advising Els?
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A change of matrimonial property regime during marriage requires a notarial deed, the personal appearance of both spouses (or representation under strict conditions), and registration and transcription formalities. A private deed drafted by an adviser is void as an instrument of change: it cannot alter the regime. The notary must first establish that the parties were married without a contract (default regime of community of property), then check whether any later notarial deed exists. If no valid deed exists, the original community regime applies, and the house acquired in 2002 is presumed community property even if registered in Marc's name alone. The notary should also check the deed's registration and whether any third parties relied on it, and warn Els that the occupancy clause is unenforceable against the children. The advice must be based on the actual registered deed, not on the parties' belief.
2. Assuming the community regime applies, how should the notary structure Els's options and calculate what she receives?
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The notary must first liquidate the community. The house (450,000 EUR) is presumed community; the portfolio (480,000 EUR) and savings (60,000 EUR) are presumed own property unless evidence shows otherwise. The community is therefore 450,000 EUR, half of which (225,000 EUR) belongs to Els as her share. Marc's estate comprises his half of the community (225,000 EUR) plus his own portfolio (480,000 EUR), i.e. 705,000 EUR. Els then chooses between usufruct of the entire estate and ownership of the marital share. Under the usufruct option she receives a life interest in 705,000 EUR; under the ownership option she takes 225,000 EUR outright plus a life interest in the rest. The notary must value the usufruct (age-based conversion) and compare the outcomes, note that the children's bare ownership is reduced, and document the choice in a notarial deed. The savings account must be traced before any distribution.