Marital property agreement: separate property guide

Many couples marry without thinking about what happens to their joint and individual assets if the relationship ends, whether through divorce or death. That is a mistake that can prove costly. A marital property agreement (ægtepagt) is the only legal document that lets spouses agree on a matrimonial property regime other than the one the law sets by default.

This guide explains what an ægtepagt is, when it makes sense to have one, what it can contain, and the requirements for it to be valid in Denmark.

What is an ægtepagt?

An ægtepagt is a written agreement between two spouses (or spouses-to-be) about how their assets are to be divided, both during the marriage and when it ends. It governs what lawyers call the matrimonial property regime (formueordningen), and the rules are set out in the Danish Act on Spouses' Financial Affairs (lov om ægtefællers økonomiske forhold).

Without an ægtepagt, the statutory default applies: community of property (fælleseje). This means that everything the spouses own and earn during the marriage is, as a starting point, split equally on separation or divorce.

With an ægtepagt, you can agree that some or all assets are kept out of the division. This is called separate property (særeje).

When is an ægtepagt relevant?

An ægtepagt is relevant in a wide range of situations. The most common are:

When acquiring a business If you or your spouse owns a business, an ægtepagt can ensure that the business does not have to be divided or sold on divorce. It protects you, your co-owners and your employees.

Inheritance and gifts If you receive an inheritance or a large gift, an ægtepagt can ensure that these funds remain your separate property and are not included in any division of assets.

Buying property with unequal contributions If you buy a home together but contribute unequally, for example because one of you has more savings, an ægtepagt can ensure that the one contributing more does not lose that extra contribution on divorce.

Different financial backgrounds If one spouse has significantly greater assets, debt or obligations than the other, it may make sense to delimit responsibility.

Protection against creditors In certain situations, separate property can protect one spouse's assets from the other's creditors.

The two property systems: community of property and separate property

Community of property (fælleseje)

Community of property is the default in Danish law where there is no ægtepagt. Under community of property the spouses formally own their own assets, but on separation or divorce an equal division of the combined net assets is calculated.

In other words, even though you "own" your car and your account, the total net assets (assets minus debt) must be divided equally unless something else has been agreed.

Separate property (særeje)

With an ægtepagt you can agree separate property for part or all of your assets. There are several forms:

Full separate property (fuldstændigt særeje) The asset is kept entirely out of the division, regardless of whether the divorce is caused by one spouse or the other. This is the most protective form.

Divorce-only separate property (skilsmissesæreje) The asset is kept out of the division on divorce, but forms part of the estate on death. This is often used where the aim is primarily protection against division rather than against the rules of inheritance.

Combined arrangements You can combine full and divorce-only separate property for different assets. For example: the business is full separate property, while the holiday home is community property.

What can you agree in an ægtepagt?

An ægtepagt can govern much more than just ownership of a particular account or property. Typical subjects:

• Which assets are community property and which are separate property
• What happens to future inheritance and gifts
• Compensation to one spouse on divorce
• Housing arrangements when the marriage ends
• Division of joint debt
• Investments made during the marriage

There are, however, limits to what an ægtepagt can agree. You cannot use an ægtepagt to waive the right to spousal maintenance, and you cannot agree terms that conflict with good practice or legislation.

Requirements for a valid ægtepagt

An ægtepagt is not valid simply because you have signed a piece of paper. Under section 20 of the Danish Act on Spouses' Financial Affairs, an ægtepagt is only valid when it is in writing, signed by both spouses and registered in the Personal Register (Personbogen). There are three formal requirements:

1. Written form

The ægtepagt must be in writing. An oral agreement is not binding.

2. Both spouses' signatures

Both spouses must sign the ægtepagt. In practice it is created and signed digitally with MitID at tinglysning.dk. There is no requirement to appear before a notary, and an ægtepagt does not need to be notarised. If one spouse has a guardian under the Guardianship Act (værgemålsloven), the guardian must sign as well.

3. Registration (tinglysning)

The ægtepagt must be registered in the Personal Register (Personbogen) to be valid. Registration is done digitally via tinglysning.dk and is subject to a fixed registration fee.

Registration is not merely protection against creditors. It is a condition for the ægtepagt to be valid at all. An unregistered ægtepagt has no legal effect, not even between you as spouses.

What does an ægtepagt cost?

Registration fee: The fixed fee for registering an ægtepagt is DKK 1,850. There is no variable fee based on asset value for the ægtepagt itself. If the ægtepagt also involves a transfer of real property between the spouses, further fees may apply.

Legal advice: If you want a lawyer's help drafting it, budget DKK 2,000 to 8,000 depending on complexity. A standard ægtepagt on full separate property is far cheaper than a complex agreement with many assets and clauses.

LegalDock: With LegalDock's ægtepagt template you can create the basis for your ægtepagt for a fraction of the lawyer's price. You still need to have the ægtepagt registered, but you save on the drafting.

Ægtepagt on divorce and death

On divorce the ægtepagt takes effect at the division of assets. If full separate property has been agreed on, say, a business, it is kept entirely out of the division, regardless of who asks for the divorce.

On death the picture is more nuanced. Divorce-only separate property automatically becomes community property on death. This means a spouse with divorce-only separate property on, say, a property will have that property included in the estate and thus in the inheritance on the partner's death. Full separate property, by contrast, remains separate property on death and forms part of the deceased's estate on special terms.

This is an important difference, and it is the reason many couples combine an ægtepagt with a will to secure the desired distribution of assets in all scenarios.

Ægtepagt and business owners

For entrepreneurs and business owners the ægtepagt is particularly important. Without separate property you risk that, on divorce, your spouse has a claim to half of the business's value, which in practice can force you to sell or take out a loan to pay them out.

Many investors and banks also require the business owner to have an ægtepagt ensuring that the business cannot be forced into dissolution because of private family-law matters.

Frequently asked questions about ægtepagt

Can we create an ægtepagt even though we are already married?

Yes, absolutely. An ægtepagt can be created both before and after the marriage. There is no deadline. The agreement takes effect from the date of registration.

Can we change or revoke an ægtepagt?

Yes. An ægtepagt can be changed or revoked at any time, but only by a new ægtepagt, which must also be registered. A change requires both spouses' consent.

Is an ægtepagt the same as a cohabitation agreement?

No. An ægtepagt applies only to spouses. Couples who live together without being married (cohabitants) can instead enter into a cohabitation agreement (samlivskontrakt) governing similar matters. A cohabitation agreement is not subject to the same formal requirements as an ægtepagt and does not need to be registered, but should still be made in writing.

What happens to inheritance received during the marriage?

Without an ægtepagt, inheritance forms part of the community property and can be subject to division on divorce. If you want an inheritance to be your separate property, you must either agree it in an ægtepagt, or the person leaving the inheritance can designate it as separate property in a will.

Can a court set aside our ægtepagt?

In very rare cases. The courts can set aside agreements that are manifestly unreasonably skewed and entered into under duress or by mistake. An ægtepagt entered into voluntarily and properly registered is very difficult to challenge.

Is a lawyer necessary?

It is not required by law, but can be recommended for complex financial circumstances or uncertainty about the consequences. For many couples a standard ægtepagt on separate property is sufficient and can be created with a template without a lawyer. Registration in the Personal Register is mandatory regardless.

Conclusion

An ægtepagt is one of the most important legal documents a couple can create. It protects both parties and provides clarity about what happens to their assets, whether the marriage ends in divorce or death. The requirements are clear: written form, both spouses' signatures and registration in the Personal Register. The cost is manageable, and the ægtepagt itself can be created and registered digitally at tinglysning.dk.

Start with LegalDock's ægtepagt template, fill it in, and then register it in the Personal Register.

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The content of this article is for guidance only and does not constitute legal advice. Consult a family-law solicitor if you are unsure which matrimonial property regime suits your situation.