If you live in Miami, Houston or Los Angeles and you’re closing on an apartment in Lima with your spouse, the question of whose name goes on the deed is not a translation problem. It’s a conflict-of-laws problem. Peru’s marital property real estate Peru framework, set out in articles 295 to 326 of the Civil Code, defaults to community property (sociedad de gananciales) the moment you marry without a prenup. That default looks familiar if you live in California, Texas or Arizona, but the marital property rules in Peru aren’t identical, and the differences will decide who can sell, mortgage or inherit the property when life happens.

Contents: The two regimes · Community vs separate property · Separation of property and prenup · Buying in your own name · Buying jointly with your spouse · Binational couples and US states · Divorce and partition · Death of a spouse · FAQ

Peru’s two marital property regimes

Peru’s Civil Code (Decreto Legislativo 295, in force since 1984) gives couples two marital property regimes for marital property real estate Peru transactions: sociedad de gananciales (community property) and separación de patrimonios (separation of property). The first is the default. If you marry in Peru and don’t sign a prenuptial public deed (escritura pública) electing separation, the law treats your marital property as community by operation of Article 295.

For US-based readers, the closest mental model is community property as it works in California, Texas, Arizona, Nevada, Idaho, Louisiana, New Mexico, Washington and Wisconsin. Anything you owned before marriage stays separate; anything earned or bought during the marriage belongs to the marital estate and is split 50/50 at dissolution. Common-law states like Florida, New York, Illinois or Massachusetts work differently: title controls during the marriage and equitable distribution applies at divorce. If your reference frame is Florida, Peru’s default rule will feel more aggressive on the marital-estate side.

Article 311 of the Peruvian Civil Code creates a strong presumption: every asset acquired during the marriage is presumed marital property unless you can prove otherwise. The burden is on the spouse claiming separate ownership. That proof typically requires bank statements, notarized declarations and sometimes forensic accounting.

Community versus separate property in the marital property real estate Peru framework

Article 302 lists what counts as separate (bienes propios): assets brought into the marriage, anything received by inheritance, gift or bequest, assets purchased with the proceeds of a separate asset, personal injury awards and copyrights. Article 310 sweeps everything else into the community estate (bienes sociales): wages and salaries earned during marriage, the fruits and income of separate property, and real estate bought with savings accumulated during the marriage.

Here’s where US buyers often slip. In California, fruits and rents of separate property remain separate. In Peru, those rents become community. So if you owned a Miraflores penthouse before you married, kept it in your name, and rented it out for ten years of marriage, the rental income is community money under Peruvian law and any new property bought with it will likely be community as well. The trace-the-money exercise (called subrogación real, Article 311 paragraph 2) is the only way to keep the new property separate, and it requires explicit language in the deed plus bank documentation.

If you don’t make the separate-property declaration in the public deed at closing, SUNARP (Peru’s land registry) will record the property as community by default. Litigating to reclassify it later is a multi-year judicial process. Get the language right at signing.

Separation of property: the Peruvian prenup and post-nup

Articles 327 to 331 govern separación de patrimonios. Each spouse owns, manages and sells what’s titled in their name; each is responsible for their own debts; there is no community estate. It functions like a US prenuptial agreement that elects out of community property in California or Texas, except the form is stricter: it must be a public deed before a Peruvian notary and recorded in the Registro Personal at SUNARP.

You can elect separation at two moments. Before marriage by executing a public deed with both fiancés, then filing it at SUNARP. Notary fees run roughly S/ 500–800 (about US$ 130–215), plus a small recording fee at SUNARP (around S/ 24, [VERIFY: 2026 SUNARP TUPA]). Or during marriage, under Article 296, by mutual public deed and registration. Once recorded, the new regime binds third parties, including banks holding mortgages and future sellers.

This matters when you’re financing. A Peruvian bank that already approved a mortgage with both spouses on the loan won’t release one of them just because you signed a post-nup. The post-nup operates going forward, not retroactively over existing community debt.

Buying in your own name while married

If you want a Lima apartment titled solely in your name and you’re married under community property, three legal paths exist. First, the trace-the-money path: you pay with documented separate funds and the notary writes that into the deed. Second, your spouse appears at signing and expressly declares that the funds are your separate property and that they make no claim to the asset. This concurrence clause is accepted in Lima notarial practice and by SUNARP examiners. Third, and cleanest: convert the marital regime to separation of property first by recording the post-nup, then buy.

For a Mexican-American couple in Houston buying a US$ 900,000 unit on Pezet, San Isidro, with savings accumulated during the marriage, the cleanest play is usually path two or three. Path one only works if you can document the dollars came from a pre-marital account or an inheritance.

Buying jointly: Article 315 and the two-signature rule

Article 315 is the most-quoted provision in Peruvian luxury real estate transactions. To dispose of or encumber community assets, both spouses must sign. Disposition includes selling, mortgaging, gifting, swapping, granting easements or usufructs. Buying also triggers the two-signature rule when community funds are deployed or a mortgage is signed against the marital estate.

The absent spouse can grant a special power of attorney by public deed (or a consular power of attorney if abroad), but you cannot dispense with their participation. A purchase signed by one spouse alone, when funds are community, can be voided by the non-signing spouse, by creditors or, in some cases, by the public prosecutor’s office. The Peruvian Supreme Court has reaffirmed this line in recent civil decisions ([VERIFY: exact casación citation]).

Mortgage banks and dual signatures

BBVA, BCP, Interbank, Scotiabank and BanBif require both spouses to sign the mortgage agreement and the loan when the regime is community property, even if only one spouse has the qualifying income. The mortgage attaches to a community asset, so the debt commits the marital estate. If one spouse is in the US, they sign a specific consular power of attorney at the Peruvian consulate (Miami, New York, Los Angeles, Houston, Washington DC) and the document is later legalized via apostille. A general POA is rejected; the bank wants the property and the operation specified.

Binational couples and US community-property states

Peruvian Article 2078 governs which law applies to spousal property: the law of the first marital domicile. If you and your spouse first set up household in Florida, Florida law (separate property by default with equitable distribution at divorce) governs your marital property relations. If your first marital home was in Lima, Peruvian community property governs. If your first marital home was in California or Texas, US community property governs but with state-specific quirks Peruvian notaries are not required to know.

In practice, Lima notaries handling cross-border marital property deals ask for a written legal opinion (or a certificate of foreign law) from a US attorney describing the regime, or they request that both spouses appear at signing and expressly accept Peruvian law for the specific transaction. Foreign spouses without a Peruvian DNI need a valid carné de extranjería or a passport with visa, and a RUC tax ID if they intend to rent the apartment out afterward. For the broader workflow, see our guide on buying luxury real estate in Lima from abroad.

The most common premium-segment scenarios we see at Miraflores and San Isidro closings: Peruvian-American couple buying with funds from a US joint account; Spanish citizen married to a Peruvian buying with Spanish-source funds; Argentine couple residing in Miami buying as a remote second home. Each requires its own separate-property declaration and its own conflict-of-laws analysis.

Divorce and partition: what happens to the apartment

If you divorce while under community property, Article 318 lists the events that dissolve the regime: annulment, legal separation, divorce, declaration of absence, death, change of regime. Once dissolved, you liquidate: you inventory community assets and debts, pay community debts with community assets, reimburse separate-property contributions, and divide the remainder 50/50 (Article 323).

For a single apartment, you have three practical paths: one spouse buys out the other at appraised market value (the appraiser must be on the Ministry of Housing’s registered tasadores list), you sell to a third party and split the cash, or you keep it as registered co-owners under a written agreement. For a US$ 2M penthouse in Country Club, San Isidro, where neither party has the cash to buy out the other, the typical path is sale to a third party. Net proceeds are split after paying Alcabala transfer tax, brokerage fees, second-category income tax (5% on the gain under Peru’s Income Tax Law and the purchase agreement framework) and notary fees.

Under separation of property, divorce does not affect title. Each spouse keeps what’s recorded in their name. Jointly purchased assets fall under ordinary co-ownership rules (Articles 969 to 998). For notarial procedure context, the Colegio de Notarios de Lima publishes the standard fee schedules.

Death of a spouse: gananciales first, inheritance second

If one spouse dies under community property, you liquidate the marital estate first. The surviving spouse keeps 50% of the community assets as their share (not as inheritance). The other 50%, plus any separate property of the deceased, becomes the estate. The surviving spouse then inherits as a forced heir alongside the children, taking a portion equal to one child’s share (Article 824).

Article 731 grants the surviving spouse a lifetime free habitation right over the apartment that served as the marital home, provided their other inheritance rights don’t already exceed the value of that property. This right is recordable at SUNARP and effectively prevents children from forcing a sale of the marital home while the surviving spouse is alive. For estates above US$ 1M, planning tools include a notarial public-deed will, anticipo de herencia (advance inheritance), tax planning, and trust structures with Peruvian banks. None of this is plug-and-play; it requires a Peruvian estate attorney and, for cross-border situations, US tax counsel coordinated with the Peruvian counsel.

Quick facts before you sign

• Default regime in Peru: community property (Article 295, Civil Code).
• Switching regime mid-marriage: allowed via public deed and SUNARP recording (Article 296).
• Two signatures required to dispose of or encumber community assets (Article 315).
• Separate property: pre-marital assets, inheritances, gifts, personal injury awards (Article 302).
• Cost of regime change: ~S/ 500–800 notary plus ~S/ 24 SUNARP recording (referential 2026).
• Conflict of laws: first marital domicile decides which national regime applies (Article 2078).

Frequently asked questions

A signature you make once and live with for decades

Marital property regime is not a checkbox. It defines who holds title to the most expensive asset of your life, who decides to sell or mortgage it, and how Peru’s tax authority treats the transaction if it unwinds. For US-based buyers writing checks above US$ 500,000 on Lima real estate, the difference between drifting into community property by default and electing separation of property with a Peruvian notary and a US attorney is the difference between a clean closing and a five-year cross-border dispute. Talk to your notario, your attorney, and your spouse before you walk into the developer’s sales office.

This content is informational and does not constitute legal or tax advice. Every case must be reviewed by a licensed Peruvian attorney or accountant. Peruvian regulations may have changed since publication; always verify the latest version with SUNAT, SUNARP or the relevant official source. Rates, costs and prices referenced correspond to May 2026 and are subject to change.

Considering a Lima Top apartment and want to understand your marital property real estate Peru regime before signing? Email us at hola@penthouse.pe and we’ll point you to the legal professionals who routinely handle cross-border closings.