Article 91 of the Family Code: What absolute community property includes
Status: In force
What does Article 91 say?
Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.
What does it mean in plain language?
Article 91 says that, under the absolute community of property, the common property is made of all the property the spouses owned on the wedding day and everything acquired after. This is the default regime for couples married under the Family Code without a prenup (Article 75). The exceptions are listed in Article 92, or may come from the couple's marriage settlement, and Article 93 presumes that property acquired during the marriage is common.
In everyday words: under absolute community, what was "mine" before the wedding generally becomes "ours", together with what each spouse earns and buys afterwards. Only three kinds of property stay separate under Article 92.
How does it work in real life?
Maria: a condo bought before the wedding
Maria finished paying for a condo in 2012 and married Jose in 2015 without a prenup. Neither has children from a former marriage. Under Article 91, the condo becomes community property from the wedding day, even though Maria paid for it alone.
Maria again: a lot from her father
In 2020, Maria's father dies and leaves her a lot in his will, and the lot is rented out. The lot is property acquired by gratuitous title, so it stays Maria's under Article 92(1), with its rental income, unless the will expressly says it forms part of the community.
Ramon: a widower who remarries
Ramon, a widower with a son from his first marriage, owns a house before he marries Elsa. Under Article 92(3), the house and its income stay Ramon's exclusive property, because he has a legitimate descendant by a former marriage.
Ben: a car in his name only
Ben buys a car during his marriage to Ana and registers it in his name alone. Article 93 presumes the car belongs to the community. If Ben says it is his alone, he must prove that it is one of the properties excluded by Article 92.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- The community starts at the precise moment the marriage is celebrated, and a stipulation for any other start date is void (Article 88).
- Both spouses administer the community property jointly. One spouse cannot sell or mortgage it without the other's written consent or a court order (Article 96).
- Neither spouse may donate community property without the other's consent, except moderate donations for charity or on occasions of family rejoicing or family distress (Article 98).
- The community pays the debts listed in Article 94, such as the support of the family and debts contracted for the benefit of the community.
- The community ends on death, legal separation, annulment or a declaration of nullity, or judicial separation of property (Article 99). The net assets are then divided under Article 102. See effects of legal separation.
- Couples married before August 3, 1988 without a prenup are usually under conjugal partnership of gains instead, where each spouse keeps what he or she brought to the marriage (Article 109). See Article 124 and absolute community vs conjugal partnership.
- Live-in partners are not under this regime; see Article 147.
What does Article 91 say?
Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.
The opening words matter. "Unless otherwise provided in this Chapter" points to the exclusions in Article 92. "Or in the marriage settlements" means a valid prenup can change the rule.
What property is excluded from the absolute community?
Article 92 lists three exclusions:
(1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.
In plain words:
- Gifts and inheritance received during the marriage. "Gratuitous title" means the spouse got the property for free, such as by donation or inheritance. The property and its fruits and income stay separate, unless the giver expressly said they would be common.
- Things for one spouse's personal use, such as clothes. Jewelry is the exception: it is common property.
- Pre-marriage property of a spouse with legitimate descendants from a former marriage, together with its fruits and income. This protects the children of the first marriage.
Who has to prove that a property is excluded?
The spouse who says so. Article 93 sets a presumption:
Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.
So a car or a lot bought during the marriage is treated as common property unless someone proves that it falls under Article 92.
Frequently asked questions
Is property I bought before the wedding part of the community?
Usually yes, under absolute community. Article 91 includes all property owned by the spouses at the time of the wedding. The exception is Article 92(3): property owned before the marriage by a spouse who has legitimate descendants by a former marriage stays that spouse's own, with its fruits and income.
Is my inheritance shared with my spouse?
No, unless the person who left it to you expressly said it would form part of the community. Article 92(1) excludes property acquired during the marriage by gratuitous title, such as inheritance or donation, and its fruits and income.
Is jewelry community property?
Yes. Article 92(2) excludes property for the personal and exclusive use of either spouse, but says jewelry shall form part of the community property.
The house is titled only in my husband's name. Is it still common?
If it was acquired during the marriage, Article 93 presumes it belongs to the community, unless it is proved that it is one of the properties excluded by Article 92.
How is community property divided when the marriage ends?
Article 102 lists the steps: an inventory, payment of debts, delivery of each spouse's exclusive property, and then the net assets are divided equally, unless the marriage settlement provides another division or a share was validly waived.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
Was this page helpful?