Marriage Contracts and Crypto Assets: Clear Rules for Digital Wealth in Marriage

Starting point: crypto assets in the statutory property regime

Most German spouses live in the statutory regime of community of accrued gains: on divorce, the wealth increase achieved during the marriage is equalised (secs. 1372 et seq. BGB). Crypto assets count like any other wealth: they belong to initial and final assets and must be valued at the respective reference dates. That is exactly where the problems lie:

• Volatility: substantial price movements can occur between separation, service of the divorce petition (reference date for final assets, sec. 1384 BGB) and actual payment.
• Evidence: acquisition dates and values must be proven for the initial assets – often laborious for wallets grown over years.
• Disclosure: spouses owe each other information about their wealth (sec. 1379 BGB). Self-custodied crypto tempts incompleteness – with considerable procedural risks.

Structuring options in a notarial marriage contract

A marriage contract requires notarisation (sec. 1410 BGB). For crypto wealth, the main options are:

• Excluding crypto from equalisation: crypto holdings (or a defined portfolio) are carved out of the equalisation of gains, leaving the regime otherwise intact (modified community of accrued gains).
• Valuation clauses: reference price, valuation platform and reference-date mechanics are fixed; averaging periods can smooth price spikes.
• Inventory of initial assets: a mutually acknowledged schedule attached to the deed (wallet addresses without keys, quantities, prices) prevents later evidentiary distress.
• Payment terms: the equalisation claim is a money claim; the contract can provide instalments or maturity rules to avoid forced sales in unfavourable markets.
• Separation of property as the most far-reaching solution – to be used with care given its inheritance and tax implications.

Also for existing marriages and unmarried couples

Marriage contracts can be concluded or amended at any time – anyone who built significant crypto wealth after marrying should review the position. For unmarried couples, partnership agreements with comparable rules are available.

Crypto assets in the separation of unmarried partners

For unmarried couples there is no equalisation of accrued gains. Where crypto wealth was built up jointly or one partner financed the other's acquisitions, difficult disputes under unjust-enrichment or partnership law can arise on separation – often with a considerable evidentiary problem. A notarial partnership agreement can clarify in advance who is entitled to which holdings, how joint acquisitions are treated, and how valuation and equalisation work on separation.

The entrepreneurial marriage and crypto wealth

If one spouse holds crypto assets in the business assets of their company, their value development can significantly affect the accrued gains. In entrepreneurial marriages, marriage contracts are frequently used to remove business assets – and thus crypto assets held there – from the equalisation of gains or to value them separately. This prevents equalisation claims from endangering the company's liquidity. The structuring must be aligned with the rest of the succession and corporate planning.