Prenuptial agreements and the marital property regime

The Code calls it the autonomy of marital agreements: spouses may govern their personal and economic relations, as well as the nature, management, enjoyment and destiny of their own and common assets, through capitulaciones matrimoniales, setting in them the clauses and conditions mutually convenient to them, provided they are not contrary to law, morals or public order. There is an express limit: clauses that undermine the authority, dignity or parity of rights the spouses enjoy in the marriage are void and treated as unwritten. The validity and effectiveness of capitulaciones are governed supplementarily by the general rules of contracts.

Anyone about to marry or already married may execute them. The Code expressly addresses two special cases: a non-emancipated minor and a judicially incapacitated person who are fit to marry may execute and modify capitulaciones, but they need the consent of both parents, or of the parent exercising patria potestad, or of the guardian, as applicable. And there is a consequence worth knowing: if the capitulaciones are void for lacking the concurrence and signature of those persons, but the marriage is valid under the law, the minor or incapacitated person is understood to marry subject to the sociedad de gananciales régime.

• Executing them by public deed: both the original capitulaciones and any later modification must be in a public deed to be valid and enforceable.Verified against the official source
• Recording or annotating them in the Registro de Capitulaciones Matrimoniales so they take effect against third parties. If they affect real property, they are also recorded and annotated in the Registro de la Propiedad.Verified against the official source
• Not including clauses contrary to law, morals or public order, nor clauses undermining the spouses’ authority, dignity or parity of rights: those are void and treated as unwritten.Verified against the official source
• If the party executing is a non-emancipated minor or a judicially incapacitated person fit to marry: the consent of both parents, of the parent with patria potestad, or of the guardian.Verified against the official source

• Whatever the notary asks to identify the parties and describe the assets and clauses of the agreement. The Code sets no document list: it refers the validity and effectiveness of capitulaciones to the general rules of contracts.

1. 1

   Step 1: First understand the régime you get if you do nothing

   It is the sociedad de gananciales. The Code says that if the spouses have not agreed a different economic régime, the sociedad de gananciales begins at the very moment of the marriage’s celebration, without waiting for its inscription in the Registro Demográfico. Under that régime both spouses hold the common assets with equal rights and obligations, and on dissolution the accumulated assets and the gains or benefits obtained by either of them while the marriage lasted are attributed by halves. The sociedad de gananciales can also begin later, if so agreed in capitulaciones.

2. 2

   Step 2: Decide what you want to agree

   The most common option is the separation-of-property régime, which the Code expressly regulates: spouses may freely agree it before marrying or during the marriage, and it is governed by the clauses they agree in the capitulaciones, provided they are not contrary to law, morals and public order. There is an important outward limit: separation of property between the spouses does not prejudice rights creditors have already acquired over ganancial assets under the sociedad de gananciales régime. In other words, changing régime does not erase what a third party is already owed.

3. 3

   Step 3: Execute them before a notary, by public deed

   This is neither optional nor cosmetic. The Code requires that capitulaciones matrimoniales and any modifications to the originals be executed by public deed to be valid and enforceable. An agreement signed between you on a private document does not meet that requirement. If the party executing is a non-emancipated minor or a judicially incapacitated person, the parents or guardian must concur and sign.

4. 4

   Step 4: Record or annotate them in the Registro de Capitulaciones Matrimoniales

   This is the step people forget, and it decides whether the agreement holds against third parties. The Code requires that executed capitulaciones be annotated in that Registry, and so must the agreements, judicial resolutions and other facts or acts modifying the marital economic régime. If those capitulaciones or acts affect real property, they are additionally recorded and annotated in the Registro de la Propiedad, in the manner and for the effects the special legislation provides. There is a practical consequence of not annotating a modification: a transaction founded on the original agreement, with no later modification recorded or annotated, is presumed made in good faith, and its annulment does not prejudice third parties who acted relying on its effects.

5. 5

   Step 5: If your capitulaciones are old, check the transitional rule

   The Code carries an express transitional provision: capitulaciones matrimoniales executed before this Code need not be annotated in the Registro de Capitulaciones Matrimoniales. But any modification made to them will be annotated in that Registry, together with the reference to the amended ones, as the Code itself provides. So an old agreement stands without annotation, but the moment you touch it, the new rule applies.

Capitulaciones are executed before a notary, by public deed. The annotation is made in the Registro de Capitulaciones Matrimoniales, and when they affect real property, additionally in the Registro de la Propiedad. The Code names both registries but its text publishes no addresses, phone numbers or portals: ask the notary who authorizes the deed about the annotation procedure.

• Believing the window closed at the wedding: the 2020 Code allows agreeing separation of property before or during the marriage.
• Signing the agreement on a private document: capitulaciones and their modifications require a public deed to be valid and enforceable.
• Executing the deed and not annotating it: without recording or annotation in the Registro de Capitulaciones Matrimoniales it has no effect against third parties.
• Forgetting the Registro de la Propiedad when the agreement affects real property: there is an additional recording there.
• Changing régime believing it erases debts: separation does not prejudice rights creditors have already acquired over ganancial assets.
• Including clauses that undermine the spouses’ authority, dignity or parity: they are void and treated as unwritten.
• Assuming the régime begins when the marriage is recorded: the sociedad de gananciales begins at the very moment of the celebration.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

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