The practical question is straightforward: in what situations can a spouse’s/partner’s assets be frozen in a criminal case? The answer depends on the marital property regime (partial community, universal community, conventional/mandatory separation, final participation in acquisitions) and on how the law structures property measures and effects before and after conviction. For background, see our posts on financial consequences of criminal conviction and asset freeze in criminal proceedings. Here, the focus is the marital property regime — including the regime applicable to a de facto marriage.
1) Seizure: reaches assets of illicit origin
Seizure reaches specific assets where there are strong indications that they are the product or proceeds of crime. Because the debate concerns the asset itself, there is no reservation of the moiety (marriage portion): if a property was acquired with illicit proceeds, co-ownership or the spouse’s good faith does not shield the restraint. The decisive point, however, is evidentiary: seizure cannot rest on presumption; it requires concrete indicia of illicit origin — particularly at the outset of the investigation. In conflicts with civil or labor attachments, case law recognizes the primacy of criminal seizure in protection of the public interest and the effectiveness of prosecution.
In a de facto marriage, the same patrimonial logic as marriage applies under the chosen regime; where there are strong indications of illicit origin, there is no reservation of the moiety under seizure.
2) Attachment and legal mortgage: securing compensation, with reservation of the moiety
When the purpose is to compensate the victim, courts use attachment (primarily for movables and monetary assets) and specialization of the legal mortgage (real property). Here the focus is the suspect’s lawful estate, up to the amount of the estimated loss. Because liability is personal, the rule is to reserve the spouse’s/partner’s moiety when they are not involved. Under partial or universal community, restraint will generally reach only the share of the investigated spouse; under conventional/mandatory separation, it will reach assets held exclusively in their name. If any criminal dispute arises over the assets, it is essential to calculate precisely which assets are exposed and in what amount; that also enables a request to substitute the guarantee with other assets that do not require liquidity.
3) Equivalent-value forfeiture and seizure: an important distinction
In the context of seizure, if the product/proceeds of crime cannot be found (or are abroad), it is possible to reach lawful assets of the suspect up to the amount of the estimated illicit gain. This applies both as a post-conviction effect and, during the investigation, as a pretrial precautionary measure. Because such measures reach the suspect’s estate and criminal liability is personal, the moiety of the uninvolved spouse/partner must be reserved (limiting restraint to the investigated spouse’s share).
4) Extended confiscation: the convicted person’s estate vs. third-party rights
Extended confiscation (a post-conviction effect) allows the loss of assets that exceed what is compatible with proven lawful income, when the offense carries a maximum penalty above six years. The focus is the convicted person’s estate (direct or indirect holdings, including nominees/interposed persons), with protection for bona fide third parties. In practice:
- Moiety: does not bar the loss of the crime’s product/proceeds, but protects the lawful share of the uninvolvedspouse/partner.
- De facto marriage: follows the same rule under the applicable regime.
- Good faith: if an asset is solely in the uninvolved spouse’s name (e.g., separate-property regime) and there are noindicia of concealment/simulation, that spouse acts as a bona fide third party, whose rights must be respected. If there is sham interposition or collusion, protection is lost.
5) Who is a “third party”? And when are they “bona fide”?
In criminal proceedings, a spouse/partner is a third party vis-à-vis the criminal act — unless they are a co-author/accomplice. Good faith is assessed case by case: lawful source of funds, timing and mode of acquisition, absence of concealment, and the applicable marital property regime. For common assets, the spouse is not a “third party” in the civil-law sense (they are a co-owner), but is a third party for purposes of personal liability — hence the reservation of the moiety for in personam guarantees (attachment/legal mortgage/equivalent value) and the rule that the moiety cannot be asserted against the seizure of an illicit asset.
Determining whether the spouse/partner is a third party or a bona fide third party is a key defensive task: only a third-party claim (embargos de terceiro) can be adjudicated immediately. Where the allegation is good faith, criminal procedure generally requires adjudicating the criminal merits first and then assessing whether the person acted in good faith.
Conclusion
The answer to “how far can a spouse’s/partner’s estate go in a criminal case?” turns on two keys: (i) where the asset comes from (lawful vs. illicit origin) and (ii) the measure’s purpose (remove illicit gain vs. secure compensation). Seizure requires strong indications of illicit origin and, once that is shown, the moiety does not shield the seized asset. By contrast, attachment and specialization of the legal mortgage presuppose personal liability, which allows reservation of the moiety for the uninvolved spouse. The same applies to equivalent-value seizure: because there is no element pointing to the illicit origin of the asset reached, only the suspect’s personal estate can be restrained, with reservation of the moiety. Extended confiscation reaches the incompatible excess of the convicted person’s estate, while preserving bona fide third parties. Technique and proof make all the difference to delimit risk, prevent overreach, and protect lawful assets.
