Property rights of spouses in Estonia, and which matrimonial property option to choose

Once the wedding day is set, future spouses will need to decide, in addition to the party venue, catering, and band, which matrimonial property regime will apply to their marriage.

The choice must be made when filling out the marriage application. Which regime to choose and how is the family home protected in different property regimes?

Before getting married, prospective spouses can choose the most suitable property regime for their situation. When submitting the marriage application, you can select the option that best suits you. 

Under Estonian law, only one spouse is permitted at a time, in accordance with the requirement of monogamy. If either prospective spouse has a previous marriage, they must provide documentation such as a divorce certificate or death certificate to prove the prior marriage has been legally terminated.

Foreign applicants must also have a valid residence permit to enter into a marriage contract in Estonia. As Estonia is a member of the European Union, it adheres to EU regulations regarding marriage, divorce, and the recognition of documents across all member states. After the marriage is contracted, a marriage certificate is issued, serving as official proof of marriage.

• jointness of property binds the spouses very strongly in financial terms;
• set-off of assets increment gives the spouses greater property independence while ensuring that the financially weaker spouse retains a certain degree of security;
• separateness of property means that you are completely independent as spouses in terms of property.

A contract marriage involves formalising the marriage through a legal contract, which may require notarization and specific documentation.

The fourth option for determining a property regime is to enter into a marital property agreement (see below).

If the spouses do not choose a property regime when applying for marriage, the joint of property regime is applied by default from the date of marriage entry. The spouses can change the matrimonial property regime during the marriage with a notarised marital property contract.

What are the property rights of spouses in Estonia?

Property rights within marriage are a cornerstone of family law in Estonia, shaping how assets are owned, managed, and divided between spouses.

The Family Law Act sets out the legal framework for these rights, ensuring clarity and fairness in the handling of both personal property and assets acquired during the marriage. In Estonia, property belonging to spouses is generally classified as either joint property or separate property.

Joint property refers to assets acquired by either spouse during the marriage—such as real estate, savings, or valuable possessions—which are considered to be owned by both spouses together. This means that both partners have equal rights and responsibilities regarding these assets, regardless of whose name appears on the title or account.

On the other hand, separate property includes assets that one spouse owned before the marriage, as well as property acquired individually through inheritance, gift, or other specific means during the marriage. Separate property remains under the sole control of the spouse to whom it belongs, and is not subject to division in the event of divorce unless otherwise agreed.

Understanding the distinction between joint property and separate property is essential for managing financial matters and protecting each spouse’s interests throughout the marriage.

Jointness of property, set-off of assets increment and separateness of property

Jointness of property

If the prospective spouses do not select a property regime on the marriage application or enter into a marital property agreement, jointness of property is the default regime applied. Under jointness of property, assets acquired during the marriage are held in joint ownership by the spouses jointly.

These properties acquired during the marriage are considered marital assets and, in the event of a divorce, they will be divided equally. Upon the termination of a marriage, joint property is divided according to succession laws or court decisions.

If one spouse wishes to make a transaction involving the matrimonial assets, they must obtain the consent of the other spouse.

Set-off of assets increment

Set-off of assets increment means that assets acquired during the marriage are the sole property of each party.

Assets belong to the spouse whose name they were acquired under. Property belonging to each spouse remains their own, and fixed assets acquired before marriage or by inheritance or gift are considered the spouse’s separate property and are not subject to division.

As an exception, the consent of the spouse who is not the owner is needed to make transactions with a dwelling used as a family home.

Separateness of property

The most independent property regime is the separateness of property, where property belongs to the spouse or her spouse in whose name it is and who acquired it during the marriage. Spouse’s separate property includes property owned before marriage and fixed assets acquired individually.

Property owned before marriage remains the separate property of the spouse or her spouse.

Marital property agreement

A marital property agreement that was entered into before the marriage will enter into force on the date of the marriage contract.

A marital property agreement authenticated by a notary may be entered into before or during a marriage. Such an agreement establishes a legal relationship between the future spouses or legal spouses, depending on whether it is concluded before or after marriage. It also outlines the obligations arising from the chosen property regime.

By mutual agreement of the parties, the marital property agreement may be amended or a new marital property agreement may be entered into; however, the consent of both parties is required, and changes cannot be made unilaterally by one party.

At the request of a spouse, the marital property agreement will be entered in the marital property register.

A marital property agreement determines which property remains separate property and which is considered joint property, and how this joint property is used and how it is divided, if necessary. The marital property agreement applies to both future spouses (before marriage) and legal spouses (after marriage).

The marital property agreement may not deny a spouse or divorced spouse the right to receive maintenance or waive the right to divide the joint property of the spouses upon termination of the marriage.

However, certain gifts or financial transactions may be justified as fulfilling a moral obligation or adhering to etiquette, and such exceptions can be recognised in specific legal situations.

A matrimonial property agreement is terminated upon termination of a marriage, if you enter into a new matrimonial property agreement or if the property regime is terminated in court.

Legal capacity and separation

In the context of Estonian family law, the active legal capacity of each spouse plays a crucial role in managing marital property and fulfilling family obligations, including the responsibilities each spouse has toward their family.

Active legal capacity

Active legal capacity refers to a person’s ability to independently enter into legal transactions and accept responsibilities relating to their property or her property and other family matters. If one spouse has restricted active legal capacity—due to age, health, or a court ruling—the other spouse may be required to administer joint property or her property on their behalf, always acting in the best interests of the family.

In such cases, financial support may be provided by the state or ordered by the court, especially in matters involving guardianship or limited capacity, and a third person may be engaged in guardianship or custody decisions.

Legal separation

Legal separation, while not the same as divorce, can significantly affect the property relationship between spouses. Spouses who are legally separated have specific rights and obligations regarding property and family housing, including the management of shared assets and maintenance obligations. Family housing, where the family reside regularly, is protected under family law, and legal decisions may affect its use during separation.

During a period of legal separation, spouses may live apart and manage their assets independently, but the marriage itself is not dissolved.

In such cases, the administration of joint property or her own property may be adjusted by court order to protect the interests of both parties and any children involved. The court may also determine how assets acquired during the separation are classified—whether as joint property or as the separate property of one spouse.

If children are involved in the separation, the court determines child custody arrangements, which cannot be predetermined by marital property agreements. The court is responsible for determining child custody and visitation rights based on the child’s best interests.

Restricted active legal capacity

Suppose a spouse is declared to have restricted active legal capacity. In that case, the other spouse may need to seek court approval for certain transactions involving marital property, especially when it concerns immovable property or the family home.

This ensures that the interests of the spouse with limited capacity, as well as the family’s financial security, are safeguarded. In such cases, the court may order regularly paid amounts to ensure financial support for the spouse or children.

In all cases, the property regime chosen at the time of marriage—whether jointness of property, set-off of assets increment, or separateness of property—continues to guide the division and administration of assets unless a marital property contract or court decision states otherwise. Both spouses and children have equal status in legal proceedings and are entitled to maintenance.

Legal separation or changes in legal capacity do not automatically alter the property regime. Still, they may require additional legal steps to clarify each spouse’s rights and responsibilities regarding marital property, spousal support, and the welfare of the family. Each spouse is expected to contribute according to their ability and operate within their respective area of responsibility.

Specific legal claims or obligations may be limited or denied based on his or her conduct during marriage or separation.

Property disputes

Disagreements over property can arise at any stage of a marriage, but they are most common during the process of divorce or legal separation. When spouses cannot agree on how to divide their marital property, the Family Law Act provides a clear set of rules to guide the process.

Typically, joint property is divided equally between the spouses, unless a marital property contract specifies a different arrangement. However, if one spouse believes that the other has concealed, wasted, or unfairly managed assets, legal disputes may follow.

In such cases, the court may be called upon to resolve the dispute and ensure a fair outcome.

The court will consider various factors, including the duration of the marriage, each spouse’s contributions to acquiring and maintaining the property, and the financial needs of both parties after separation.

The goal is to achieve an equitable division of marital property, taking into account the unique circumstances of each family.

If a marital property contract exists, the court will follow its terms unless they are found to be unjust or contrary to the interests of one spouse. Ultimately, the legal process aims to protect the rights of both parties and ensure that joint property is divided in a manner that is just and reasonable.

Sadly, marriages can end in divorce

It is natural for everyone to marry with the expectation that marriage will last forever, and it could not be otherwise.

However, it should be borne in mind that a marital property contract is not only valid for divorce and division of property, but also for regulating the economic and property relationships of the parties during the marriage.

In the case of divorce, a court, notary, or vital statistics office is required to grant divorce, following the necessary legal procedures. In the event of a spouse’s death, property is typically inherited by the surviving spouse, who may also assume specific legal responsibilities and liabilities.

There are many kinds of couples and as many lifestyles, so everyone can choose the property relationship that is right for them. Same sex marriage is legally recognised in Estonia, reflecting the diversity of couples and the evolving legal landscape.

If raising the issue of choosing which matrimonial property option is still seen as a sign of mistrust, this attitude is unlikely ever to change.