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Real estate transfer to the children – the solution in the War of Roses?

Posted by Angelo Arboscello on 29. November 2018
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If a marriage breaks down, the house in which father, mother and child(s) have lived under the same roof up to now usually also comes under fire. If the couple is joint property owners, a solution must be found. If both ex-partners want the property to remain “in the family”, it may make sense to transfer the house or apartment to the children they share.

Transferring the former family property to the children can be a good solution in many divorce constellations, as it is often difficult to separate from the shared home. A donation to the offspring makes sense above all if there is only one child in the family. However, among siblings, disputes about the use of the property can easily arise. The problem is not solved, but passed on to the next generation.

A transfer to the offspring is uncomplicatedly feasible if the child has already grown up and is at work, i.e. is able to use the flat or the house himself and can pay for the maintenance, such as the duties for garbage collection, insurance, property tax, etc., financially. However, if the child is still a minor, a guardianship court must approve the transfer.

It is also legally regulated that during the divorce phase no partner may sell or give away ownership shares in the common property over the head of the other – not even to the offspring. In the context of a joint gain, the home of one’s own is an essential building block, the whereabouts of which both have to decide together.

The tax issues involved in a donation must also be taken into account in advance. Parents can give away house or flat tax-free to their child only if the value does not exceed 400,000 euros per parent. If the property is not used by the child itself, gifts with a higher value must be taxed.

If all family members agree that a transfer of the home to one or even several children is desired, a corresponding contract is drawn up by the notary. The transfer agreement usually not only states that the ownership is transferred from the parents to the child, but can also be agreed, for example, a housing right for one parent or possibly a right of reclaim.

Are you considering transferring the family property to your children in the divorce situation? Please contact us. We will be happy to advise you.

Photo: © AndreyPopov

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