Modification of BSM (Community Property of Spouses) by a notarial deed

The provision of Section 143 of Act No. 40/1964 Coll. the Civil Code, as amended (hereinafter referred to as the “Civil Code”), stipulates that things acquired by a spouse by gift during the duration of the marriage are excluded from community property. In the event that you both acquire the real estate property by gift, you will become its tenants in common, which implies that you will have a quantitatively defined share in the common thing (for example, each 1/2). If your parents donate the real estate property to you jointly, they should also state in the deed of gift the size of the shares that each of you will acquire; otherwise, it applies that the shares of both of you are equal.

“In the case of gifts from other persons to the spouses, the requirements of a deed of gift must be met. For the assessment of the question of who the donee is, the intention of the donor will be decisive, namely whether they wished to donate the thing to only one of the spouses or to both. In most cases, it will be possible to infer this intention only from the circumstances under which the donation occurred. It will not suffice merely to assess the nature of the object—whether it serves the needs of the whole family or only one of the spouses—but it is always necessary to proceed from the intention of the donor.” (Fekete, I.: Civil Code. Commentary. Volume II).

The only option to acquire donated things into the community property of spouses is a modification of the community property in the form of an agreement on the extension of the community property. By this agreement, you can include in the community property even things that would otherwise belong to your exclusive ownership or to tenancy in common. For the validity of this agreement, the fulfillment of the following prerequisites is required:

• the conclusion of the agreement on the extension of the community property during the duration of the marriage

• the form of a notarial deed

• effects ex nunc (for the future), which implies that it cannot apply to things acquired before the conclusion of the agreement on the extension of the community property

• it cannot interfere with already existing rights