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Spanish Matrimonial Property Regimes: Are lottery prizes part of a matrimonial community of assets?

By Álvaro Aznar Azcárate, solicitor and Spanish Abogado, at Sykes Anderson Perry Limited Solicitors, Advocates and Chartered Tax Advisers in London, England

This information has been prepared by Sykes Anderson Perry Limited as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted

Community of Assets is the default matrimonial property regime that applies in the majority of Spanish territory. In a community, the assets acquired onerously during the marriage are held jointly by both spouses. On the death or divorce the community must be dissolved and each spouse will be allocated a 50% share of the assets.

Article 1347 of the Spanish Civil Code details which assets are considered to be community assets; e.g. wages and salaries, property acquired by the spouses, income received from assets solely owned by one of the spouses, assets acquired onerously, etc.

Not all assets are community of assets, some assets are excluded, such as assets inherited by the spouses or assets that the spouse acquires to be held solely (bien privativo)

What happens to lottery prizes?

According to article 1361 of the Spanish Civil Code, lottery prizes should be considered as part of the Community. However, complications arise when the spouses are separated and initiating their divorce proceedings. The Spanish courts have not been consistent in their rulings.

Take for example the ruling of the Supreme Court of 20 December 2000. The court ruled that the lottery prize awarded to the separated husband was part of the community as this had not been dissolved at the time of the win.

The Appeal Courts of Tenerife and Leon took a different view in their rulings of May 2010 and March 2002. The Appeal Court of Tenerife took the view that if a prize was won after the breakdown of the couple, given that there can be long delays between the separation of the spouses and the liquidation of their community, the winnings should be considered as a sole property asset. The Appeal Court of Leon also ruled that the winnings acquired after the separation of the couple were a sole property asset, this time on the basis that the community lacked its purpose when the spouses separated.

Lottery wins are often concealed. In 2016, the Malaga Appeal Court ruled in favour of a wife whose husband concealed his win whilst they were separated. The Court took into consideration the date on which the prize was awarded and took the view that at that date, the community was still in operation.

In view of the discrepancy between the different courts honesty with your spouse (even if separated or divorce) will be your best policy. It will certainly save you a headache and legal costs

December 2018
Álvaro Aznar Azcárate
Solicitor and Spanish Abogado
Sykes Anderson Perry Limited