Prenuptial Agreement and Estate Inventory
· 2 min read
Significance of the prenuptial agreement
A prenuptial agreement is an agreement between spouses that excludes the marital right to each other's property entirely or partially. The agreement directly affects the estate inventory and partition, because it determines how property is divided after a spouse's death. Without a prenuptial agreement, both spouses have marital right to all of each other's property, and the partition is done equally. The existence and content of the prenuptial agreement are stated in the estate inventory deed.
A copy of the prenuptial agreement is attached as an appendix to the estate inventory deed.
Partition in connection with estate inventory
The partition is performed after the spouse's death before the distribution of the inheritance. In the partition, both spouses' property subject to marital right is added together and divided equally. The spouse with fewer assets receives an equalisation payment from the other. A prenuptial agreement can entirely remove the need for partition or limit it. The partition can be performed by agreement or as administered by an estate distributor. The result of the partition affects the amount of the estate's assets and thus the inheritance taxation.
Different types of prenuptial agreements
Prenuptial agreements can vary in content. A fully excluding agreement means neither spouse has marital right to the other's property. A partial agreement may concern only certain property, such as inherited or gifted property. A one-sided agreement excludes the marital right only on one spouse's part. A prenuptial agreement can also be conditional, being in force only in case of divorce but not death. Interpreting a prenuptial agreement can be complex, and in unclear situations, legal expert assistance is recommended.
The surviving spouse's position
The surviving spouse has several protective rights under the Code of Inheritance. The equalisation privilege means the surviving spouse is not obliged to surrender an equalisation to the estate even if their property is greater. The surviving spouse also has the right to retain the couple's shared home in their possession. Despite a prenuptial agreement, the right of possession may protect the surviving spouse's housing. The prenuptial agreement affects the surviving spouse's inheritance tax position in that an equalisation transferred through partition is not subject to inheritance tax, as it is based on marital right and not inheritance.
Frequently asked questions
How does a prenuptial agreement affect the estate inventory?
A prenuptial agreement significantly affects the estate inventory because it determines how the spouses' property is divided in the partition. Without a prenuptial agreement, the spouses have marital right to each other's property, and the partition is done equally. A prenuptial agreement can exclude the marital right entirely or partially. The estate inventory deed states the existence and content of the prenuptial agreement. The agreement affects how large a share of the deceased's property belongs to the estate and how much remains with the surviving spouse based on the partition.
What is a partition and when is it performed?
A partition (ositus) is a procedure in which the spouses' property is divided when the marriage ends either through divorce or death. After death, the partition is performed before the distribution of the inheritance. In the partition, the spouses' property subject to marital right is added together and divided equally, unless the prenuptial agreement provides otherwise. The spouse with less assets receives an equalisation payment (tasinko). In the estate inventory deed, the partition appears as the surviving spouse's share being separated from the estate's assets. The partition can be performed as a separate procedure after the estate inventory.
Can the surviving spouse refuse to pay an equalisation to the estate?
Yes. Under Chapter 3, Section 1, Subsection 2 of the Code of Inheritance, the surviving spouse has the right not to surrender their property as an equalisation payment to the first deceased spouse's heirs. This so-called equalisation privilege (tasinkoprivilegi) means that even if the surviving spouse has more property than the deceased, the spouse is not obliged to pay the difference to the estate. The equalisation privilege protects the surviving spouse and is one of the most important rights of the surviving spouse. The heirs cannot demand an equalisation from the surviving spouse after the first spouse's death.
How is a prenuptial agreement registered?
A prenuptial agreement must be made in writing, signed by both spouses, and witnessed by two impartial witnesses. The agreement is registered at the Digital and Population Data Services Agency (formerly the local register office), and it only comes into force after registration. An unregistered prenuptial agreement is invalid. During the estate inventory, the validity of the prenuptial agreement is verified from the Digital and Population Data Services Agency. A registered prenuptial agreement is a public document that anyone can check.
Read also
How does a will affect the estate inventory? Learn about notification of the will, contesting, forced share, and consideration of the will in the deed.
What documents are needed for an estate inventory? A comprehensive list: family records, civil registry certificates, will, bank statements, and property documents.
How is inheritance tax determined based on the estate inventory? Tax classes, exempt portions, tax tables, and deductions clearly explained.