When a married person dies in Puerto Rico, the question "how much does each person get?" can't be answered without first resolving another one: what part of the property really belonged to the deceased? If the couple was married under the sociedad legal de gananciales (community property regime), a good part of their assets already belongs to the surviving spouse. This guide explains how that part is separated before the estate is divided.
What the community property regime is
It is the marital property regime that applies to most marriages in Puerto Rico. Couples can choose their regime through a prenuptial agreement (capitulaciones matrimoniales); if they don't choose one, they are subject to community property (Art. 489 of the Código Civil de Puerto Rico de 2020, the 2020 Civil Code).
Under this regime, what the couple earns and acquires during the marriage belongs to both of them. The death of one spouse ends the marriage and terminates the community property regime (Art. 532). From that moment, and until it is settled, a post-marital community (comunidad post ganancial) exists between the surviving spouse and the heirs of the one who died, with the presumption that each side has an equal share (Arts. 547 and 548).
Community property and separate property
Before the regime can be settled, the property has to be classified. This is what causes the most arguments in families.
Separate property (belonging to only one spouse)
Under Arts. 509 and 510, separate property (bienes privativos) includes, among other things:
- what each spouse owned before the marriage;
- what they received during the marriage as a gift, bequest or inheritance;
- what they acquired with separate money or in exchange for other separate property;
- compensation for harm to their person or to their separate property;
- clothing and personal items, except those of extraordinary value bought with shared funds.
The right to receive a retirement pension is separate property, although the periodic payments collected during the marriage are community property (Art. 515).
Community property (belonging to both)
Under Art. 513, community property (bienes gananciales) includes, among other things:
- what is bought during the marriage with shared money, even if it is in only one spouse's name;
- what either spouse earns from their work;
- the fruits, rents and interest produced by both community and separate property.
When in doubt, the law presumes that property of the marriage is community property unless proven otherwise (Art. 519). That's why it's wise to keep deeds, wills and documents that prove something was inherited or owned before the wedding.
Separate property can give rise to credits. If community money was used to pay for or improve separate property, the community can claim a credit when it is settled (Arts. 511 and 518). And the other way around: if a spouse put separate money into community property, they may be entitled to reimbursement (Art. 538).
First the community is settled, then the estate is divided
The Code sets out a clear order:
- Inventory. A list is made of the community's assets and liabilities as of the date it ended. Personal effects in ordinary use are not included: they go to the surviving spouse (Art. 533).
- Payment of the community's debts. Debts for support (alimentos) take priority (Art. 536).
- Reimbursements and credits. Each spouse is credited with what the community owes them, and what they owe the community is offset (Art. 538).
- Division in half. The remainder "is to be divided in half between both spouses or their respective heirs" (Art. 539).
The result: the surviving spouse keeps their 50% of the community remainder in their own right. The other half, added to the deceased's separate property, forms the caudal relicto (the decedent's estate), which is what is divided as the inheritance. See what is a decedent's estate.
While the settlement is under way, support for the surviving spouse and for any children entitled to it is paid from the common pool (Art. 543). The surviving spouse can also ask to be awarded the usual home on a preferential basis, paying the excess if there is any (Arts. 541 and 542), and in the estate they have a preferential right to the family home (Art. 1625). We explain this in rights of the surviving spouse.
On top of their half, the surviving spouse inherits
The community half is not an inheritance, so it doesn't replace what the surviving spouse inherits. Under the 2020 Code, for deaths since November 28, 2020:
- Without a will, the children and the spouse inherit in equal shares (Art. 1721). If there are no descendants, the spouse inherits everything, even if the deceased's parents are living (Art. 1722).
- With a will, the spouse is a forced heir (Art. 1622): they are entitled to a portion of the legítima (forced share) equal to each child's. See the forced share (legítima).
Don Luis and doña Carmen were married under community property. Don Luis died in 2024 without a will, leaving two children. These are his assets (hypothetical figures):
Step 1. Settle the community property
| Item | Amount |
|---|---|
| House bought during the marriage | $240,000 |
| The couple's savings | $40,000 |
| Car | $15,000 |
| Community assets | $295,000 |
| Mortgage balance | −$60,000 |
| The couple's credit card | −$5,000 |
| Community remainder | $230,000 |
| Doña Carmen's half (Art. 539) | $115,000 |
| Don Luis's half (goes to his estate) | $115,000 |
Step 2. Form don Luis's estate
| Item | Amount |
|---|---|
| Don Luis's community half | $115,000 |
| Land he inherited from his mother (separate) | $95,000 |
| Decedent's estate (caudal relicto) | $210,000 |
Step 3. Divide the estate among doña Carmen and the two children, in equal shares: $70,000 each.
Final result: doña Carmen receives $185,000 ($115,000 from her half plus $70,000 as an heir) and each child receives $70,000. The total is $325,000, equal to the total net assets.
The common mistake: dividing the $325,000 by three, as if it were all inheritance, would give each person about $108,333. Doña Carmen would receive $76,667 less than she is entitled to.
You can try other combinations with this calculator, which lets you separate the community half first:
If don Luis had died before November 28, 2020, the community property settlement would be similar, but the estate would be divided under the 1930 Code, with the surviving spouse's share (cuota viudal) as a usufruct (a right to use and receive income). See 2020 Civil Code vs. the 1930 Code.
Prenuptial agreements
A prenuptial agreement (capitulaciones) is the agreement in which the couple chooses a different regime, such as separate property. It can be executed before or after the wedding, and modified later (Arts. 488 and 491). To be valid it must be made as a public deed (escritura pública), and to have effect against third parties it must be recorded in the Registro de Capitulaciones Matrimoniales (Registry of Prenuptial Agreements) (Art. 499).
If the deceased had a prenuptial agreement with separate property, there is no community half to separate: each spouse owned their own property. Even so, the surviving spouse is still an heir and a forced heir of the deceased, because that doesn't depend on the property regime but on the marriage. A prenuptial agreement can't be used to waive a future forced share (Art. 1627).
Details worth knowing
- In the Registro de la Propiedad (Property Registry), if real estate is presumed to be community property, only the deceased spouse's share is recorded when the inheritance right is recorded (Law 210-2015, Art. 126). See recording inherited property.
- On the Departamento de Hacienda ("Hacienda", Puerto Rico's Treasury) return, Schedule A of Form SC 2800 C asks you to state whether each asset is separate or community property and what percentage belonged to the causante (the deceased person whose estate it is).
- Couples who didn't marry have no community property and no inheritance rights by law. See unmarried partners and inheritance.
Frequently asked questions
Is a house in my dad's name alone community property?
It may be. What is bought during the marriage with shared money is community property even if it's in only one spouse's name (Art. 513), and the law presumes community property for anything not proven to be separate (Art. 519). If he bought it before marrying or inherited it, it is separate property.
Is an inheritance my mom received during the marriage community property?
No. What a spouse receives by inheritance, bequest or gift during the marriage is separate property (Art. 509). However, the rents or interest that property produced during the marriage are community property (Art. 513).
Does the community have to be settled even if everyone agrees?
Yes, at least on paper. To know which part is inheritance, the surviving spouse's half must be separated first. If everyone agrees, the community property settlement and the division of the estate can be done together before a notario (in Puerto Rico a notary is an attorney); see dividing the estate (partition).
Does only the estate pay the community's debts?
No. The community's debts are paid before the community property is divided (Art. 536), so they reduce the surviving spouse's half and the deceased's half equally. The deceased's separate debts are collected from their estate. See debts of the deceased.
Sources
- Código Civil de Puerto Rico de 2020 (Ley 55-2020), Arts. 488–499 y 509–519 (régimen económico y bienes). bvirtualogp.pr.gov
- Código Civil de Puerto Rico de 2020, Arts. 532–548 (liquidación y comunidad post ganancial). bvirtualogp.pr.gov
- Código Civil de Puerto Rico de 2020, Arts. 1622, 1625, 1720–1721. bvirtualogp.pr.gov
- Ley 210-2015, Ley del Registro de la Propiedad Inmobiliaria, Art. 126. lexjuris.com
- Departamento de Hacienda, Instrucciones del Modelo SC 2800 C y Anejo A. hacienda.pr.gov
CaudalRelicto.com is an independent guide. It is not Puerto Rico's Departamento de Hacienda, the courts or any government agency. This page is general information, not legal advice from an attorney who knows your case. Names and figures in examples are hypothetical. Found an error? Tell us.
