BOE-A-2026-5161 ·5 March 2026 ·Resolution Low impact
Tax

Heirs cannot register community property as separate property without liquidating the marital regime or a court ruling

The Directorate General for Legal Certainty and Public Faith confirms that a property cannot be registered in the Land Registry as the separate property of a deceased person if it is currently registered as community property (Art. 40.d Mortgage Law). To rectify this error arising from the inheritance deed, it is mandatory to first liquidate the community property regime with the spouse's consent or, failing that, obtain a judicial ruling.

In 3 key points

  1. Impossibility of registering community property as separate property without liquidating the community property regime (art. 40.d Ley Hipotecaria)
  2. Rectification of errors in the title requires the consent of the holder or a judicial ruling (art. 40.d Ley Hipotecaria)
  3. Two-month period to appeal judicially before the Civil Court (art. 325 y 328 Ley Hipotecaria)

How it affects those involved

For individual heirs, this ruling prevents the direct registration of assets listed as community property in the Registry, even if the inheritance deed describes them as separate property. This compels interested parties to undergo a liquidation procedure of the community property regime with the surviving spouse or to initiate legal proceedings to rectify the registry entry (Art. 40.d Mortgage Law).

Lifecycle

2026-03-05PublishedPublished in the BOE
Official text Based on BOE data (boe.es). Information, not advice.
PDF on boe.es

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