Are donations between spouses possible?

Appearing to be a peaceful topic, donations between married couples are, in fact, a legal regime which contains many specificities under Portuguese law. The regime of donations between married couples is more restrictive than the general regime of donations, in order to enforce the property regime chosen by the spouses: communion of acquisitions, separation of assets or general communion of assets.

Inherent to this protection is the principle of the immutability of the matrimonial property regime. If the spouses have chosen a property regime when they entered into the marriage it cannot be changed, so the aim is to ensure that this regime is not adulterated by donations between married couples for the same purpose. The regime of donations has particular relevance in terms of safeguarding the rights of creditors of both spouses.

The restrictions on donations between married couples include donations between married couples under the mandatory regime of separation of property by legal requirement. Donations of common property are also prohibited, regardless of the property system of the marriage, so it is not possible to donate one’s half of an asset, only one’s own assets.

In addition to these restrictions, it should be noted that donations from one spouse to the other do not communicate, regardless of the property system. That is, the donated asset will always be considered the beneficiary’s own property.

In cases where a donation between spouses is actually possible, the donor is free to revoke the donation at any time without the need for any justification. This right to be able to revoke the donation is also unrenounceable and the beneficiary of the donation cannot oppose such a decision.

In addition, donations between spouses expire on the date of divorce or legal separation, this fact is often ignored by donors on the assumption that such donations must subsist in the event of divorce.

Another situation of expiry of the donation occurs due to the death of the beneficiary or donee if the latter dies before the donor and if the donor does not confirm the donation within three months after the death of the former.

These situations of expiry of the donation are justified insofar as, if the marriage contract ceases, the donation contract will also be affected or prejudiced and the donation in question is necessarily related to the existence of the marriage and the ties arising therefrom.