Berlin – Spouses share the beautiful and sad moments of life. But what about assets and debts? “It is a widespread misconception that marriage collapses the assets of partners,” says Eugénie Zobel-Kowalski of Stiftung Warentest. Because the legal standard is a so-called Zugewinngemeinschaft.
This means that each spouse retains the assets that he brings into the marriage and generates in the meantime. “If a marriage ends, there will be an extra compensation if one spouse earns more than the other,” says Zobel-Kowalski. From this difference, the better-off should pay out half of the other.
Separation of property, if the partners want to keep their assets separate from the beginning
If spouses want to keep their assets completely separate from the start, they can also agree on property separation. “Whether property, stock portfolio, life insurance or jewelry – in the separation of property, each spouse remains the owner of his assets No one has a claim against the other,” says Eva Becker, chairman of the Association Family Law in the German Bar Association (DAV). For older couples, the separation of property could be worthwhile, for example, if each spouse has already taken care of themselves. Then the children could inherit everything, if desired.
The problem lies in the detail
But the separation of property has also a great disadvantage: If the marriage ends with the death of a spouse, the survivor must tax his share of the estate fully. Not so with the Zugewinngemeinschaft: “Only here, the bereaved receives a quarter of the property tax-free as a gain,” said Becker. But does the segregation of property do not protect spouses from each other’s debts?
“It is nonsensical, for liability reasons, to agree on a separation of property,” says Dominik Hüren of the Federal Chamber of Notaries. In principle, one spouse is not liable for the debts of the other, which arose during the marriage, even in the winning community. This would only be the case if one spouse, for example, assumed a guarantee for the other or co-signed a loan application. This applies regardless of whether the couple is married or not.
“Overall, a property separation is rarely recommended,” says Hüren. Who modifies his Zugewinngemeinschaft accordingly, achieve a “separation of property to measure”. For example, a marriage contract may stipulate that in the event of the death of a spouse, the tax-privileged gaining community should apply, but in the event of divorce, the profit-sharing scheme is excluded. In addition, the marriage contract may stipulate that certain assets, such as land or companies, are not included in the profit-sharing settlement.
Gain community usually makes more sense
According to Zobel-Kowalski, the community of profits goes back to the classic “housewife marriage”: “One sole earner brings the money home, the other, mostly the wife, takes care of the children.” Since a partner thus has no opportunity to build up their own assets, this should be compensated at the end of the marriage. “For a family with children, or children, a Zugewinngemeinschaft so makes sense,” says Zobel-Kowalski. Equal income earners without children, patchwork families, married couples in second or third marriages, partners of different nationalities and couples, in which one brings much more fortune into the marriage, should at least think about modifying the community of profits.
Or rather a community of property?
If you really want to share everything with your spouse, you can arrange a community of property. “Then the previously separate merges into a common asset,” explains Zobel-Kowalski. Even those who have been added during the marriage will become joint property of the spouses – the same applies to debts. “Joint liability no longer corresponds to the modern understanding of marriage,” says Zobel-Kowalski. There is the possibility of a community of property, but it is hardly noticed.
“If a couple wants to enter into a marriage contract, they should seek expert advice and make a fortune statement – open and honest,” advises Zobel-Kowalski. If a partner is severely disadvantaged, for example due to excluded maintenance and pension claims, that is usually immoral and thus ineffective. Partners with different nationalities should also clarify in the marriage contract which law should apply.
If in doubt, the notary advises
In principle, according to Hüren, spouses should be aware that the law provides for compensation in the event of divorce (regrouping of property rights), post-marital maintenance, as well as old-age pension and pension rights. “If the spouses introduce certain rules differently, they should definitely seek advice from a notary,” says Hüren. Incidentally, a marriage contract must by no means always be to the detriment of the spouse, who has less income or assets. Losses in the gain-sharing can, for example, be compensated by the fact that the disadvantaged spouse receives more support after a divorce. Such regulations would be common in practice, Hüren said.
“A great attitude of married couples would be:” I’ll make you poor with you, and I’ll make you rich. “Then there would be no need for regulations,” added Becker. To enter into a marriage only for tax reasons, is in no case recommended.