Capital Fund

What it is

In addition to choosing between joint estate or separation of property, the spouses may also choose to set up a capital fund (fondo patrimoniale).

The capital fund is a special type of agreement whereby certain assets may be set aside to meet the needs of the family, which means that the capital fund is dedicated to a specific purpose.

How it is established and with what

Only the following may be included in the fund:

  • real estate;
  • registered movable assets;
  • securities.

Placing assets in a capital fund means locking them up for the needs of the family, without the need for a transfer of ownership. Consequently, the move can be accomplished in two ways:

  • ownership of the property is given to both spouses;
  • alternatively, each spouse can remain the sole owner of the asset transferred.

Establishment of the capital fund assets may effected:

  • by the spouses;
  • by a third party. In this case, the establishment of the capital fund requires the acceptance of both spouses.

Role of the Notary

In any case, the establishment of the capital fund must be by way of the signing of a public document before a notary public in the presence of two witnesses, which will be noted in the margin of the marriage certificate and recorded in the Land Registry.

Administration of the assets in the capital fund is governed by the rules for the administration of a joint estate. In particular, in order to validly sell or dispose of the assets of the fund, there are two cases:

  • if there are no minor children, the consent of both spouses is required;
  • if there are minor children, in addition to the consent of the spouses the permission of a judge is also required.

Role of the Notary

The terms of the constitution of the Fund may, however, establish different rules: therefore, in this case too the advice of a notary is important to find the correct solution for your needs.

Creditors

The capital fund is a separate estate, since it is designed to guarantee specific creditors. Assets included in the fund can only be claimed by creditors of the family, which means that if the creditor knows that the debt has nothing to do with the needs of the family, he has no claim on the assets of the fund. 

Dissolution

Termination of the capital fund occurs for the following reasons:

  • annulment, dissolution or termination of the civil effects of the marriage.

In such cases, however, if there are minor children, the capital fund lasts until the coming of age of the last-born child.