Do I need a marriage contract?

The starting point for a marriage is community property, where you and your spouse each have a joint estate.

In general, the joint estates comprise all assets belonging to you or your spouse prior to getting married or which you or your spouse may accumulate during the marriage.

The community property will end in the event of separation or divorce, and the joint estates must be assessed and divided.

A division of property is an equal division of your net joint estate, where each of you are entitled to half of the value of the positive net individual share of the community property belonging to your spouse, but in return you will have to hand over half of your own individual share.

If you do not wish to share your assets with your spouse in the event of separation or divorce, then you and your spouse will have to enter into a marriage contract regarding separate property.

There are several types of separate property, including:                        

Separate property not subject to division in case of separation or divorce but only in case of owner’s death
You will maintain your assets in case of separation or divorce, but the assets will be subject to division when you or your spouse passes away.

Fully separate property
You will maintain your assets in case of separation, divorce and the death of your spouse. If you pass away as the predeceased, then your spouse will not take out his or her statutory portion of the joint property but your spouse will continue to have a right of inheritance of your fully separate property.

Separate property not subject to division in case of separation or divorce, nor in respect of the estate of the surviving spouse
You will maintain your assets in case of separation, divorce and the death of your spouse. If you pass away as the predeceased, then your separate property will become community property, where your spouse will be entitled to both the statutory share of the community property and the inheritance, and it will also be possible for your spouse to retain undivided possession of the estate (with the children of the marriage).

An agreement on separate property may be limited to include one or several of your assets (“genstandssæreje”),a part of your assets depending on how or when you have acquired the assets in question (“erhvervelsessæreje”),a fraction or percentage of your assets or of one or several assets (“brøkdelssæreje”),a specified amount or a specified amount of the value of one or several assets (“sumsæreje”),your entire property except for a specified amount or with the exemption of a specified amount of the value of one or several assets (“sumdeling”).

Debt
As per 1 January 2018, it is furthermore possible by way of a marriage contract to convert debt into separate property. This may be of relevance if you do not want any student debt loans acquired by you or your spouse prior to marriage to be a burden on the joint estate you establish together.

Finally, you and your spouse may agree in a marriage contract that a pension scheme is separate property. Such agreement may also include future payments into the pension scheme.

You are always welcome to contact us for further information.

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