Changing from separation of property to communauté universelle with a mortgaged house
Sophie and Marc married in 2012 under a contrat de mariage adopting separation of property. They now ask a Luxembourg notary to replace it with a communauté universelle including an attribution intégrale to the survivor. They own a house in Esch-sur-Alzette bought in 2018 for EUR 650,000, financed by a EUR 450,000 mortgage from Spuerkeess; EUR 380,000 remains outstanding. Marc is a freelance IT consultant and personally guaranteed a EUR 120,000 bank loan for his business. Sophie has no business debts. They have two minor children. The notary also learns that Marc's bank has not been informed of the project and that the couple wants the change to take effect immediately so that the house is protected if Marc's business fails. They ask the notary to draft the deed, include the attribution clause, and confirm that Spuerkeess cannot object.
1. Identify the legal obstacles the notary must resolve before the change can be authenticated and made opposable to third parties.
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The notary cannot treat this as a simple drafting exercise. First, the change of matrimonial regime requires a notarial deed and, under the 2018 reform, must be published in the marriage register; it is effective between the spouses but opposable to third parties only after the formalities and the creditor opposition period are complete. Second, the Spuerkeess mortgage is a registered charge: the notary must obtain the land-registry extract and the bank's position. The bank's consent is not a validity condition for the change of regime, but the mortgage remains on the house, so the notary cannot promise that the house will be free of it. Third, Marc's personal creditor may oppose a change that defeats its claim; the notary must notify or at least warn the parties and check the applicable opposition rules. Fourth, the attribution intégrale may exceed the disposable portion and affect the two children's reserve. The notary should calculate the estate, explain the reserve, and propose a clause limited to the disposable portion or a different protection such as life insurance or a will. Only after these points are resolved should the deed be drafted.
2. Can the notary include a clause stating that the house enters the community free of the Spuerkeess mortgage? Explain.
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No. A change of matrimonial regime does not extinguish a mortgage. The house remains charged with the Spuerkeess hypothèque until the loan is repaid and the bank grants a mainlevée. The notary must check the mortgage deed for clauses on transfer, change of regime, or early repayment; some loans contain a covenant requiring bank consent. If the parties want the house to enter the community free of the charge, the only clean route is repayment and cancellation of the mortgage, or a written release from the bank, which is unlikely while EUR 380,000 remains outstanding. The notary should draft the deed subject to the existing mortgage, state expressly that the attribution is made with the charge, and obtain the bank's acknowledgement. A clause declaring the house free of mortgage would be false and could expose the notary to liability and disciplinary action.
3. What is the effect of the attribution intégrale on the two children, and what should the notary advise?
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The attribution intégrale is not automatically effective against the children. Under Luxembourg succession law, children are reserved heirs; with two children the reserve is generally two-thirds of the estate, leaving one-third disposable. The notary must value the estate, deduct debts including the mortgage, and check whether the attribution clause gives the survivor more than the disposable portion. If it does, the children can claim reduction after the first death. The notary should explain that the clause may be unenforceable in part and that the couple should consider a narrower attribution, a will, or life insurance. The notary must also consider the tax treatment of the attribution and the surviving spouse's rights. The deed should not present the clause as guaranteeing that the children receive nothing.