MALTA Law and Practice Contributed by: Rosanne Bonnici and Rebecca Diacono, Fenech & Fenech Advocates
Deprived/Reserved Inheritance Besides the grounds on which a person may become unworthy to inherit generally (as defined in the Civil Code), the persons entitled by law to a reserved por - tion may also be deprived of the reserved portion if the testator makes a specific declaration to this effect based on special grounds specified in the Civil Code. This declaration must be stated in the testator’s will. In relation to the reserved portion, the law provides that testamentary dispositions exceeding the dispos - able portion shall be liable to abatement and limit - ed to that portion at the time of the opening of the succession, provided that a demand for abatement is made within the time established by law. For the purposes of calculating the abatement, the property of the deceased shall be deemed to include all their property at the time of death, including property dis - posed of by donation (calculated on the value at the time of the donation). It is legally possible to renounce a person’s right to the reserved portion. The Civil Code caters for the following three types of marriage contract, more commonly referred to as matrimonial regimes: • the community of acquests; • the separation of estates; and • the community of residue and separate administra - tion. Community of acquests In terms of the Civil Code, the community of acquests shall apply by default to a marriage celebrated in Mal - ta, in the absence of an agreement to the contrary. The spouses are free to choose a matrimonial regime other than the community of acquests to regulate their mar - riage; albeit, the community of acquests is the default regime if they fail to do so. 2.4 Marital Property Matrimonial Regimes Furthermore, it is important to note that a marriage cel - ebrated outside Malta by persons who subsequently establish themselves in Malta shall also result in the application of the community of acquests between
the spouses. However, the spouses may take local steps to opt for an alternative matrimonial regime for their assets. These rules are now subject to the application of Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced co-operation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, which seeks to harmonise the appli - cable law with respect to matrimonial regimes across EU member states. The community of acquests generally covers all prop - erty acquired by each spouse after marriage, exclud - ing paraphernal property (“paraphernal property” refers to property acquired by either spouse before the marriage, donations received and property inher - ited by either spouse). The community of acquests is jointly administered by both spouses. However, the Civil Code also caters for extraordinary acts that require the consent of both spouses, such as: • acts of administration whereby an immovable property or real rights thereon are acquired, consti - tuted or alienated; • the borrowing or lending of money (excluding deposits in a bank account); and • the settlement of community property on trust, including the variation and revocation of such set - tled property. Both spouses jointly administer the community of acquests. In terms of the Civil Code, either of the spouses may nullify the effect of an act carried out by their spouse with which they do not agree. A spouse who deems there to be maladministration of com - munity property may bring an action to restore the other spouse to a normative routine. This is possible if there is agreement between the spouses. In the case of disagreement, the spouses have two options: • mutually requesting the court to mediate a solution; or • instituting an action against the other spouse.
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