When a business activity is carried out through a company within a marriage, the value of shares does not always belong solely to the person who holds them.
Although the capital gain attached to these securities acquired with personal funds generally remains part of the holder’s personal assets, this is not always the case. It is therefore important to be cautious and to plan carefully!
Value creation within a company
Today, developing a professional activity within a company is a natural reflex for many entrepreneurs, allowing them to structure operations efficiently, manage risks, and support growth. As the business develops, the value created is reflected in the increase in the value of shares or stocks. Intuitively, one might think that this value belongs to the person who holds the securities.
However, this view deserves nuance. Within a marriage, creating value in a company does not necessarily mean remaining its sole owner.
Who owns the capital gain linked to shares or stocks?
Does the capital gain attached to these securities necessarily belong to the entrepreneur who holds them during the marriage?
This is a crucial question. In practice, the answer depends on several factors:
- how the shares were financed (personal funds or joint funds);
- how the value was generated within the company;
- and, where applicable, the involvement of the spouse in developing the business.
These factors are not neutral. Over time, they may influence how the created value is divided, particularly in the event of divorce or the liquidation of the matrimonial property regime.
The matrimonial property regime framework
Under Belgian law, the answer is based on the distinction between personal assets and joint assets.
The statutory matrimonial property regime provides, on the one hand, for each spouse’s personal assets, including property owned before marriage and property acquired during the marriage with personal funds (e.g., through a gift or inheritance) (Articles 2.3.17 and 2.3.18 of the Civil Code). On the other hand, joint assets generally include income earned during the marriage and property acquired with that income (Article 2.3.22 of the Civil Code).
This distinction, although seemingly simple, becomes more complex when value is generated within a company.
Acquisition of shares financed by joint or personal funds
When shares or stocks are acquired using joint funds, they belong to the joint estate, as does any capital gain attached to them.
Conversely, when these shares are acquired using personal funds—particularly through reinvestment (as defined in Article 2.3.21 of the Civil Code)—they form part of the personal estate of the spouse holding them. That spouse is therefore the sole owner of the shares. This classification also extends to the capital gain generated by those shares. However, it should be recalled that professional income received during the marriage is generally part of the joint estate, as it constitutes the fruits of the spouses’ work. That said, this analysis requires important nuances.
Value often retained within the company
In practice, the value of a company is not limited to distributed income.
A director may choose to take a modest salary and retain profits within the company to finance its growth (a common situation).
This strategy, economically justified, leads to value being capitalized within the company. The value does not disappear—it shifts into the valuation of the shares.
This is where the issue becomes particularly sensitive. The shares may belong to only one spouse, but the value they represent actually comes from income generated during the marriage and retained within the company rather than paid out as remuneration. Had this income been distributed, it would have belonged to both spouses and formed part of the joint estate. By being retained in the company, it increases its value and, consequently, the value of shares held by only one spouse.
A tension thus arises between ownership of the shares and the origin of the value they represent.
The contribution of the Constitutional Court
In its ruling of March 5, 2026, the Belgian Constitutional Court provided important clarifications.
The Court confirmed that when shares are acquired with personal funds, they retain their personal nature. The capital gain therefore remains, in principle, part of the personal estate of the spouse holding them.
In doing so, the Court addressed an existing legal debate. Some argued that the classification of the shares should prevail: if they belong to the personal estate, the capital gain should follow the same regime. Others emphasized the origin of the value, arguing that when it results from activity during the marriage, it cannot be entirely separated from the joint estate.
However, the Court’s solution does not exclude any interaction with the joint estate.
The compensation mechanism
When the joint estate has been deprived of income it could legitimately have received—particularly because profits were retained within the company—a corrective mechanism may apply: the compensation mechanism, which allows the joint estate to be reimbursed (Article 2.3.44 of the Civil Code).
This mechanism restores balance between the estates when one has been enriched at the expense of the other. It is up to the claiming spouse to provide proof. Thus, even if the capital gain legally belongs to the personal estate, it may give rise to financial compensation.
The spouse’s involvement
The analysis becomes even more complex when the spouse who does not hold the shares contributes to the business. This contribution may be direct (participation in the company’s activities) or indirect (support, skills, or involvement in the development of the business).
In such situations, the boundary between personal and joint assets becomes more difficult to assess due to the interplay between ownership of the shares and the economic origin of their value. Value creation can no longer be seen as resulting solely from the activity of the spouse holding the shares. Such contributions may strengthen the rights of the joint estate, particularly through the compensation mechanism, when the value created originates, wholly or partly, from the spouse’s involvement.
Conclusion
In conclusion, an important nuance must be made: ownership of shares alone is not sufficient to determine ownership of the value they represent. Although, as a general rule, capital gains on shares financed with personal funds remain part of the personal estate, this classification cannot be assessed independently of the conditions under which the value was created.
When the value originates from activity carried out during the marriage—especially when profits are retained within the company—there is an interaction with the joint estate. This may lead to the application of the compensation mechanism, intended to restore balance when the joint estate has been deprived of income to which it was entitled. The analysis becomes even more nuanced when the spouse contributes to the development of the business, directly or indirectly. Such involvement may strengthen the rights of the joint estate where the created value originates, in whole or in part, from that contribution.
The ruling of March 5, 2026, highlights an essential principle: using a corporate structure does not allow the fruits of labor to be removed from the joint estate. The economic logic of the company does not override property law rules.
For business leaders, these issues require particular attention. The way shares are financed, remuneration choices, profit distribution policies, and the spouse’s involvement in the business are all factors that may significantly influence how value is distributed over time, particularly in the event of divorce or the liquidation of the matrimonial property regime.
In this context, a purely technical approach is insufficient. Value creation within a company must be considered from a broader perspective, integrating corporate, patrimonial, and personal dimensions in order to anticipate its effects.
It is from this perspective that Vanbelle Law Boutique supports executives and entrepreneurs in structuring and securing value creation, ensuring that decisions made today do not lead to unintended consequences tomorrow.
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