Liquidation Of Property Regime In Case Of Death
As stated in Article 225/ f. 1 of the TCC, the regime of participation in acquired property, which is the legal property regime between the spouses, terminates automatically upon death. In case of the death of one of the spouses, there are two separate liquidations. These are the liquidation of the regime of participation in acquired property upon the death of one of the spouses and the liquidation of the estate among the legal or appointed heirs of the deceased spouse.
In the event of the death of one of the spouses, the regime of participation in acquired property between the spouses is liquidated first. As a result, the amounts of the participation receivables that the spouses have against each other are determined. Because in cases where the surviving spouse has the right to participation receivables against the deceased spouse, the said participation receivable is considered as the debt of the deceased spouse’s estate and is deducted from the estate before the distribution of the deceased spouse’s inheritance among the heirs.
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After the liquidation of the regime of participation in acquired property between the spouses, the estate of the deceased spouse shall be liquidated. It should be noted that the surviving spouse is also the legal heir of the deceased spouse.
Therefore, after the liquidation of the regime of participation in acquired property, the surviving spouse also takes part in the second liquidation. Thus, after the determination of the contribution receivables of the spouses, the remaining assets of the deceased spouse are divided between the heirs of the deceased spouse and the surviving spouse.
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The Court of Cassation considers the liquidation of the regime of participation in acquired property as a prerequisite for the division of the estate. Indeed, according to the Supreme Court, “The liquidation of the regime of participation in acquired property, which ends with death, emerges as a prerequisite for the distribution of the deceased spouse’s estate. The contribution receivable is among the debts of the estate that must be paid first and in advance”. Because only then the deceased spouse’s estate can be calculated.
For this reason, the Court of Cassation does not consider it possible to carry out the liquidation of the participation receivable and the liquidation of the estate together. On the other hand, the liquidation of the estate may also be requested by the surviving spouse while the lawsuit for the claim for contribution arising from the property regime is filed. In this case, the lawsuit for the claim for contribution shall be considered as a pending matter (Art. 165 CCP). Thus, the judge may keep the lawsuit for the liquidation of the estate pending until the conclusion of the lawsuit for the claim for contribution.
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