The exclusion from the statutory community property regime of an asset acquired during marriage must be expressly stated in the deed of purchase

Abstract

With judgment No. 11599/2026, the Italian Supreme Court clarifies that, for an asset to be excluded from the statutory community property regime pursuant to Article 179(2) of the Civil Code, the mere participation in the deed by the non-acquiring spouse is not sufficient - even where that spouse takes part as the seller. An express declaration as to the personal nature of the acquisition is also required.

The case

The dispute concerns the legal classification of an asset acquired during marriage and its possible exclusion from the statutory community property regime. In particular, the husband brought legal proceedings claiming that the asset he had acquired should be regarded as personal property, and therefore excluded from the community, because the wife had also taken part in the deed of purchase in her capacity as seller.

The courts of first instance and appeal held that such participation was sufficient to exclude the asset from the statutory community property regime, even though the deed did not contain the express declaration as to the personal nature of the acquisition required by Article 179(2) of the Civil Code. In other words, the participation in the deed by the non-acquiring spouse as seller was considered equivalent to the declaration that the asset was acquired for personal use.

The wife appealed the decision of the Court of Appeal to the Supreme Court, arguing that the asset had fallen into the community property regime and that the lower courts had erred in applying Article 179(2) of the Civil Code by equating the participation in the deed by the spouse-seller with the declaration required for exclusion from the community property regime.

The Supreme Court 

The Supreme Court upheld the appeal, providing a rigorous reconstruction of the mechanism set out in Article 179(2) of the Civil Code.

The Court reaffirmed that, where an asset is acquired during marriage, it does not fall within the statutory community property regime only subject to strict conditions: on the one hand, the deed must also involve the participation of the non-acquiring spouse, and on the other hand, the personal nature of the acquisition must be expressly stated in the deed. These requirements are inseparable and are intended to ensure legal certainty in the spouses’ proprietary relations as well as vis-à-vis third parties.

Within this framework, the Court held that the mere participation of the spouse in the deed cannot be regarded as sufficient to exclude the acquisition from the statutory community property regime, even where the other spouse takes part in the deed as seller. The function of the declaration is not merely formal; rather, it serves to make explicit, within the instrument, the shared intention of the spouses to exclude the asset from the community property regime by reason of its personal nature. This function cannot be deemed fulfilled solely by the participation in the deed of the non-acquiring spouse, even where such participation is justified by an entirely different legal capacity, such as that of transferor.

It follows that, in the absence of an express declaration made by the non-acquiring spouse, the asset must be deemed to fall within the statutory community property regime, as no substitutive or implied value may be attributed to different or implicit elements.

Observations

The decision stands out for the clarity with which it delineates the scope of application of Article 179(2) of the Civil Code, avoiding flexible interpretations that would ultimately deprive the safeguards provided by the provision of any real substance.

The principle affirmed is unequivocal: the participation of the non-acquiring spouse in the deed of purchase is a necessary, but not sufficient, condition for the exclusion of the asset from the community property regime; it is indispensable that such participation takes the form of an express declaration as to the personal nature of the asset. Failing this, the acquisition falls within the statutory community property regime. The decision expressly rules out the relevance of the spouse’s participation in the transaction as seller, since such participation cannot in any way substitute for the declaration concerning the personal nature of the acquisition.

The solution adopted appears consistent with the ratio of the provision, which is to ensure transparency and legal certainty: exclusion from the community property regime, as an exception to a statutory regime, cannot be inferred implicitly or presumed, but must emerge from the deed in an unequivocal and express manner.

The ruling aligns with the recent case law expressed in Supreme Court decision No. 20332/2025, according to which the declaration made by the non-acquiring spouse for the purposes of excluding an asset from the statutory community property regime assumes the value of an extrajudicial confession only where it relates to specific factual circumstances concerning the personal origin of the funds used for the purchase.

On that occasion as well, the Court excluded the possibility that generic wording or merely implicit elements could satisfy the requirements laid down in Article 179 of the Civil Code, reaffirming the need for an express and unequivocal manifestation of intent. Judgment No. 11599/2026 further strengthens this line of authority, clarifying that not even the participation in the deed by the non-acquiring spouse in the capacity of seller can make up for the absence of the declaration required by law.

From a practical standpoint, the decision draws the attention of practitioners to the need for careful drafting of purchase deeds, cautioning against reliance on generic statements or on “atypical” forms of participation by the non-acquiring spouse. Only an express and specific declaration, made in the form and forum prescribed by law, is capable of preventing the asset from falling within the statutory community property regime.