Answer by the AvoConsulte editorial team
How can I help my son buy out his ex-wife's share without wronging my other child?
My son is divorcing and I want to help him buy his wife's share of their home. I have remarried without choosing a property regime in the marriage contract, and I do not want this money to become part of my current couple's property. When I die, I want my other child not to lose out. Can I arrange this with a will or by changing the beneficiary clause of a life insurance policy? Do I need to change my matrimonial regime?
Answer by the AvoConsulte editorial team
In Tunisia, the default regime between spouses is separation of property; community of property is optional. If you did not choose it, what you own is yours alone, and what you give your son becomes his. You do not need to change your regime for this.
Even under the community regime, what becomes joint is mainly real estate bought after the marriage for family use, excluding anything received by inheritance, gift or bequest. And the share your son buys will be in his name, not yours. If you married abroad, your regime may be governed by another law, so ask a lawyer.
Gift or loan?
- A gift: a contract with nothing in return, for which the law requires an official deed (article 204 of the Personal Status Code), complete once handed over. If made during the giver's last illness, it is treated as a bequest (article 206).
- A loan: the money remains a debt your son owes, which can be recovered, including when the estate is divided. Put it in writing.
What about a will?
Under article 179 of the Personal Status Code, a bequest to an heir, like any bequest above one third of the estate, only takes effect if the heirs consent after the death. A bequest to your other child to balance things out would therefore need your son's agreement after your death. Article 180 also lets a person allocate specific assets during their lifetime to all or some of their heirs, within their inheritance shares, taking effect at death: an option to discuss with a notary or lawyer.
Life insurance
Naming beneficiaries depends on the policy and on insurance law. We could not verify how a capital paid to a beneficiary is treated when an estate is divided in Tunisia, so ask the insurer and a lawyer before relying on it.
The right solution depends on your assets and your heirs: see a notary or lawyer before you transfer the money.
This answer was written by the AvoConsulte editorial team and gives general information only: it is not legal advice. For your own situation, consult a lawyer.
Sources
- Code du statut personnel – Du testateur (art. 178 à 180) Jurisite Tunisie
- Code du statut personnel – De la donation (art. 201 à 206) Jurisite Tunisie
- Tunisie : tout ce qu'il faut savoir sur le partage des biens entre époux La Presse de Tunisie
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- Topic: Family law