Dealing with a deceased spouse’s bank account

As an expat here what happens if I die suddenly and my Vietnamese wife’s name is not on my Vietnamese bank account? What will she need to do to access my account?

This is an excellent question. Your wife will have to convince the bank that she has the right to manage or use—for herself—the money in the account. The bank will not want to risk anything and will request your wife to bring in supporting official  documents.

By official documents, I mean letters from a competent authority certifying that the wife has rights over the bank account. Since you two were husband and wife, these documents should not be difficult to obtain. In most countries, public notaries are competent to issue them. It is advisable to first confirm with the bank precisely what kind of official documents it needs to allow your wife to use the bank account.

A crucial important point, however, is that although the bank will allow your wife access to the bank account, it does  not mean that she owns the money in it.

So, let’s start at the beginning: To whom does the money belong? This depends on many factors, since assets owned by a married couple are usually either “common property” or “separate property”. Common property means that the asset belongs to both spouses: each of them hold a 50% interest in it. Separate property means that the asset belongs personally to one of the spouse: the other one has no interest in it.

Well, how do we determine whether the bank account is common or separate property? First of all, if the couple is international, married and lives abroad, it is likely that the law of another country (other than Vietnam) will be applicable (even if the bank account is located in Vietnam). For example, they married and lived for many years in the US, then moved to Vietnam. In this example, it is likely that the relevant US law will be applicable to determine whether the bank account is common or separate property.

But let’s assume that the wife and husband married and lived in Vietnam only. In this case, Vietnamese law applies. What does Vietnamese law say about assets of married couples? It says that, unless the couple has decided otherwise, all assets must be either common or separate property in accordance with the following rules:

Common property are, in particular, all assets created by a spouse during the marriage period, income of a spouse generated by employment, business or production activity, the profits earned by a spouse from the spouse’s separate property and any other income during the marriage period.

On the other hand, separate property are assets, in particular, which were owned by a spouse before marriage and which are inherited by a spouse or given to her or him during the marriage period. Those assets are owned by the spouse individually and the other has no interest in it.

I said unless the couple has decided otherwise because the 2014 Vietnamese Law on Family allows marrying couple to sign a specific agreement at the time they marry. Such kind of agreement shall be made in writing and it shall be notarized (signed before a public notary) or certified. Typically, it will allow the couple to change the rules described above: the spouses may, for example, decide in this agreement that incomes from their employment or business activity will not be common property, but separate property of the spouse in question.

In your case, after having confirmed that the law of Vietnam applies to the assets of the couple, it is advisable to check whether this specific agreement was signed by you and your wife when you both wed.

Now that we are able to determine whether the bank account is a common or separate property, the second question is: What rights does the wife have over the bank account? If it is a common property, then Vietnamese law allows the wife to “manage” the common asset  upon her husband’s death. However, to be able to manage does not mean that she owns the asset. For example, when a person is missing for any reason, a relative of the missing person may be appointed by a court to manage such person’s assets. But it does not mean that the appointed person owns the assets: it is only entitled to manage them, for the purpose of conserving them, etc., waiting for the missing person to return. The idea is the same when a spouse dies, but the surviving spouse is not waiting for the missing person to come back, but for the “division” of the asset in accordance with the inheritance law.

As you know, when someone dies, the assets of the deceased person are allocated between that person’s heirs, it could be children, spouse, other relatives or other persons that the deceased person had designated by will. When a spouse dies, the other spouse has the right to manage the common asset until the time the asset is divided in accordance with the inheritance rules: part of it may be given to the children, part to other relatives, etc. Because the asset is common (it belongs to both spouses), the common asset will be divided into two parts: 50% for the surviving spouse, 50% for the heirs of the deceased spouse. For separate property, the solution is easier: the asset is divided among the heirs of the deceased spouse only.

Let’s not forget this important point: The right to manage the bank account does not mean ownership of the money in it.