Have you inherited a house from your parents and want to sell it? Are you married under community property? In these cases, doubts may arise as to whether the money from the sale is proprietary or proprietary. In today’s article we analyze this situation and see different cases that can occur to see what happens depending on the circumstances.
The matrimonial property regime in Catalonia and common law
The Catalan Civil Code establishes in article 231-10 the following:
1. The matrimonial economic regime is agreed in chapters.
2. If there is no agreement or if the marriage chapters are ineffective, the economic regime is that of separation of property.
Therefore, if there is no agreement, the regime of separation of assets is applied. In the Civil Code of common law, however, the following is established: Article 1315:
The economic regime of the marriage will be the one that the spouses stipulate in the matrimonial capitulations, without other limitations than those established in this Code.
Article 1316:
In the absence of capitulations or when they are ineffective, the regime will be that of the community of property.
Therefore, in Catalonia, in the absence of an agreement, the property separation regime is applied and in places in Spain where common law is applied, if there is no agreement, the community property regime is applied.
What are marital and private property?
When a couple gets married under the matrimonial economic regime of property (in Catalonia, as we have seen, it should be agreed) there are two types of assets:
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Community assets: are those that belong to the conjugal community and are regulated in article 1,347 of the Common Law Civil Code and in article 232-31 of the Catalan Civil Code.
For example, are community assets:
o What is obtained from the work of either spouse.
o The fruits and income of private and community property.
o Those acquired for valuable consideration from the common property.
o Companies created during the community property regime by one of the spouses with common assets.
o Gambling winnings by either spouse. –
Private assets: are those that belong to each of the spouses exclusively. They are regulated in article 1,346 of the Civil Code of common law and in article 232-32 of the Catalan Civil Code.
For example, they are the following:
o The assets that belonged to the person before starting the joint venture.
o Those that are acquired later by free title.
o Those acquired at the expense or in substitution of private assets.
o Clothing and objects for personal use that are not of extraordinary value.
But
what happens with a house that a married spouse receives as an inheritance? In this case, The house is a private asset and is the exclusive property of the spouse who receives it because it is a property received free of charge (inheritance). This is also established in the Catalan Civil Code, which in article 232-32 establishes that
they are private assets of each spouse, those acquired by donation or succession title.
What happens when the estate is sold in community property?
When a home is inherited by a person married in community, several things can happen:
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That he decides to live in the house with her family . The house continues to be private property, although it may happen that the inheritance tax levied on the inheritance is paid with community money (we will see the case in the next section).
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That he decides to sell the flat. In this case, a price is received for the sale of the house and a question arises:
Is this money derived from the sale of a private property, is it community or private? The money is a private asset of the spouse who received the home in inheritance by application of article 1,346 section 3 of the Civil Code of common law that establishes that assets acquired at the expense of private assets are private and by application of article 232 -32 of the Catalan Civil Code which establishes that assets acquired by real subrogation of other private assets are private. The classification of this money derived from the purchase as private property is applied, even if this amount is deposited in an account owned by both spouses.
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That the inherited home be sold to buy another for the family. Another case that can occur is that the inherited apartment is sold and with the money another apartment is bought for the family. This new apartment will also be private, unless it is decided to contribute it to the community of property.
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That they rent the house to a third person. As we have seen, the income derived from private assets is community property. Therefore, if a home inherited and received by one of the spouses is rented, the rental income received will be community property and, therefore, will be received by both spouses.
In any case, if the community of property is dissolved later, an equitable distribution of assets must be carried out.
And if the inheritance tax is paid with money from the property?
It may happen that the spouse who receives the house wants to pay the inheritance tax with common money or property of the marriage. In this case, this spouse must return the money used to the joint venture.
It is necessary to remember that the inheritance tax is a tribute assigned to the autonomous communities, therefore each one establishes exempt minimums and a series of bonuses, so it can be very different to pay in Catalonia, Andalusia, Madrid or Galicia.
If I buy a house with money from the inheritance: is it privative or profit?
We have previously commented that the assets received from an inheritance by one of the spouses are private assets since they are assets acquired free of charge or by succession title. Therefore, if I receive money from an inheritance (for example, a father leaves a son the money that he has in a bank account), that money is private and if I use it to buy a house, it will continue to be private. But ifI rent the house to a third party, the rent obtained will be community property.
Therefore, if the sale of an apartment that has been inherited by a married person occurs, it is necessary to analyze:
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The matrimonial property regime of the spouses. Let us remember that, in Catalonia, if nothing is agreed, it is the separation of assets and where common law applies, the community property regime.
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The destination of the house. The house that is received in inheritance is always exclusive, but if it is rented, the income is communal and if it is sold, the price received is a private good.
In the event that you want to proceed with the sale of a home received as an inheritance, it is advisable that you have the help of an expert real estate consultancy that will analyze the case, carry out the necessary procedures and find a buyer for the house in the best conditions. .
