You may be wondering…

• If a flat is gifted “to the spouses,” does it automatically belong to SJM?

• Can a gift belong exclusively to just one spouse?

• What is the difference between co-ownership and SJM?

• Can a gift be later included in SJM?

Clients ask me…

Does a gift automatically go into SJM?
No. By law, assets acquired as a gift belong to the exclusive property of the donee spouse (§ 709 Civil Code).

What if the gift is made “to both spouses”?
Then it creates co-ownership (typically ½ and ½), not community property.

Can a gift be made directly into SJM?
Yes, but only if this is explicitly stated in the gift agreement. Without such wording, the gift does not fall into SJM.

Can a gift be added to SJM later?
Yes – spouses may agree to extend SJM, which allows the gift to become part of community property.

Gifting and married couples in a nutshell

• Gift to one spouse = exclusive property.

• Gift to both = co-ownership.

• Exception: contract may state the gift goes into SJM.

• Gift from SJM = requires consent of both spouses.

• Gift can be added later through extension of SJM.

Main risks and mistakes

1. Myth “gift = automatically SJM.” False.

2. Unclear contracts. If not precisely stated, disputes arise.

3. Gifting from SJM without consent. Such a contract is relatively invalid.

4. Forgetting about the exception. To include in SJM, the contract must say so explicitly.

Step-by-step process

1. Decide whether you want to gift to one spouse, both, or directly into SJM.

2. State this clearly in the contract.

3. If gifting from SJM, ensure both spouses sign.

4. For high-value gifts, always consult a lawyer.

Real-life example

Parents gifted a family house to their newlywed children. In the contract, they expressly stated that the property was to become part of their community property (SJM), because they wanted to protect it as family property. Thanks to this precise wording, the house became part of SJM, not just co-ownership.

In another case, a grandfather gifted a plot of land to his grandson – without any mention of the wife. The land thus remained the grandson’s exclusive property, and in case of divorce, the wife had no claim to it.

Why to be cautious

In gifting between spouses, the details – especially the contract wording – are decisive. A poorly drafted clause may result in the property not being protected as intended, or in disputes during divorce or inheritance.

Lawyer’s recommendation

• Never assume a gift automatically falls into SJM.

• If you want the gift to belong to SJM, make sure the contract says so explicitly.

• Always check if the asset comes from SJM – then both spouses must sign.

Checklist:
☑ Contract states clearly who the gift is for
☑ I know the gift = exclusive property, co-ownership, or (exceptionally) SJM
☑ For gifts from SJM, I have both spouses’ signatures
☑ For valuable gifts, I have the contract reviewed by a lawyer

FAQ

Can a gift be made directly into SJM?
Yes, but only if the gift agreement explicitly states so.

What if the contract is silent?
Then legal rules apply – exclusive ownership or co-ownership.

Can a gift later become part of SJM?
Yes, by an agreement of the spouses to extend SJM.