Heirs who arrive after a death and find the house already in someone else's name usually assume a sale happened. Often it did not. Montenegrin law contains two contracts that move property out of a person's estate during their lifetime, and both of them are designed so that the property does not enter the estate at all — which means the forced-heirship rules never reach it.
Both are also, on the face of the statute, unusually easy to get wrong. Each carries a formal requirement whose breach makes the contract null, and one of them turns a single missing signature into a gift the heirs can attack.
Article numbers below are from a consolidated text of the Zakon o obligacionim odnosima including the most recent amending act — chain "Službeni list CG" br. 047/08, 004/11, 022/17 and 123/24 of 23.12.2024 — read on 5 September 2026. General information, not advice on a particular estate.
Contract one: transfer and distribution of property during life
Article 1063 defines it: by a contract on the transfer and distribution of property during life, an ancestor (the transferor) undertakes to transfer their property to their descendants during their lifetime, without consideration.
Article 1064(1) contains the condition that decides most disputes: the contract is valid only if all of the transferor's descendants who would be called by law to inherit have consented to the transfer and distribution. Article 1064(2) allows a descendant who did not consent to do so later. Article 1064(3) saves the contract where a non-consenting descendant dies before the transferor without leaving issue, renounces the inheritance, is excluded from it, or is unworthy.
Article 1066(1) limits the subject matter to property existing at the time of the transfer, in whole or in part. Article 1066(2) makes null any clause purporting to distribute assets that will be found in the transferor's estate. And Article 1066(3) states the consequence the whole instrument exists for: the transferred property does not enter the estate.
Article 1067 completes the picture: when the transferor dies, the estate consists of the assets not covered by the contract, together with assets acquired afterwards.
The sanction for a missing consent
Article 1068(1) is the provision heirs should read first. Where a descendant who became an heir did not consent to the transfer and distribution, the parts of the property transferred to the other heirs are treated as gifts.
That reclassification matters because gifts are not outside the reach of the forced-heirship calculation in the way an effective transfer-and-distribution contract is. A single missing consent therefore does not merely leave one descendant out; it changes the legal character of what the others received.
Article 1068(2) applies the same treatment in two further situations: where a child is born to the transferor after a transfer and distribution carried out by agreement with all the heirs, and where an heir who had been declared missing or dead subsequently appears.
Contract two: lifetime maintenance
Article 1075(1) defines the more common instrument. By a contract on lifetime maintenance, one party (the maintenance provider) undertakes to maintain the other party or a third person (the maintenance recipient) until their death, and the other party undertakes to give them all or part of their property — with acquisition of the things and rights deferred until the moment of the recipient's death.
That deferral is the feature buyers and heirs both misread. The provider is not an owner during the recipient's lifetime; the transfer takes effect at death, and it takes effect outside the estate.
Article 1075(2) confines the contract to things or rights existing when it is concluded. Article 1075(3) fills in the maintenance obligation where the contract does not: unless otherwise agreed, it covers in particular housing, food, clothing and footwear, appropriate care in illness and old age, treatment costs, and provision for everyday ordinary needs.
The two instruments side by side
| Transfer and distribution (Arts. 1063–1068) | Lifetime maintenance (Arts. 1075–1083) | |
|---|---|---|
| Who can be the counterparty | Descendants only (Art. 1063) | Anyone — including a third-party beneficiary (Art. 1079) |
| Consideration | None — transfer without consideration (Art. 1063) | Maintenance until death (Art. 1075(1)) |
| When ownership passes | On the transfer, during the transferor's life | Deferred to the recipient's death (Art. 1075(1)) |
| Consent of others required | Yes — all descendants who would be called to inherit (Art. 1064(1)) | No |
| Effect on the estate | Transferred property does not enter it (Art. 1066(3)) | Same effect, by the deferral plus the Art. 1076(1) warning |
| Sanction for a formal breach | Null (Art. 1065(3)) | Null (Art. 1076(3)) |
| Special nullity | — | Professional carer without prior guardianship-authority consent (Art. 1077) |
| Can be unwound | Not on these grounds | Yes — Arts. 1082 and 1083 |
The notary's warning is a condition of validity, not a formality
This is the point on which both contracts turn, and it is identical in each.
Article 1065(1) (transfer and distribution) and Article 1076(1) (lifetime maintenance) require the contract to be concluded in writing and certified by a notary, and require the notary, before certification, to read the contract to the parties and specifically to warn them — in the case of lifetime maintenance, to warn the recipient — that the property covered by the contract does not enter their estate and cannot be used to satisfy forced heirs.
Articles 1065(2) and 1076(2) require the notary to confirm on the contract itself that those steps were taken.
Articles 1065(3) and 1076(3) supply the sanction: a contract made contrary to those paragraphs is null.
So the warning is not advisory practice that a busy notary might compress. Its performance, and the record of its performance on the face of the instrument, are conditions of the contract's validity. For anyone examining such a contract years later — a buyer, an heir, a lender — the first thing to look for is the notary's confirmation, not the signatures.
The nullity aimed at professional carers
Article 1077 contains a prohibition with no obvious equivalent in most systems. A lifetime maintenance contract is null where the maintenance provider is a natural or legal person who cares for the recipient within the scope of their occupation or activity — the article names medical staff, hospitals and various agencies — unless the prior consent of the competent guardianship authority was obtained for the contract.
It is not an absolute bar. It is a consent requirement, and the consent has to be obtained before the contract. A care-sector provider holding such a contract without that prior consent holds a null instrument.
Registering, and the limits of the provider's position
Article 1080(1) allows the maintenance provider to secure their right under the contract by entry in the public register, and Article 1080(2) extends that right, after the death of the provider's counterparty, to a third person in whose favour the maintenance was agreed.
Article 1081 points the other way: the claims of the maintenance recipient cannot be transferred to another person.
Article 1078 provides that where lifetime maintenance is agreed for two or more people, each of them has a separate right to the determined benefits. Article 1079(1) deals with the third-party case: where maintenance is agreed in favour of a third person, the provider acquires ownership of the contract's subject matter at the moment of the death of their counterparty, unless the contract provides that ownership passes on the third person's death — and Article 1079(2) runs the maintenance obligation until the third person's death.
Getting out of it
Article 1082(1) allows the parties to terminate a lifetime maintenance contract by agreement even after performance has begun.
Article 1082(2) provides the ground that most often arises in practice: where the parties live together under the contract and their relations deteriorate so far that shared life becomes unbearable, either party may ask the court to terminate. Article 1082(3) allows either party to seek termination where the other fails to perform. Article 1082(4) preserves each party's right to compensation under the general rules of property law on termination, and Article 1082(5) allows the third-party beneficiary to seek termination after the death of the provider's counterparty.
Article 1083(1) adds the changed-circumstances route: where circumstances change after conclusion so much that performance becomes significantly more difficult, the court may, on either party's application, re-regulate their relations or terminate the contract. Article 1083(2) gives the court a middle option that is worth knowing about before litigation is started: it may convert the recipient's right into a lifetime annuity, where that suits both parties.
Why the deferral changes the diligence question
Because Article 1075(1) defers acquisition to the recipient's death, a lifetime maintenance contract produces a period — often a long one — in which the recipient is still the registered owner and the provider holds only a contractual expectancy, secured if at all by an Article 1080(1) register entry.
Three practical consequences follow from that gap.
The first is that a purchase from the recipient during that period is a purchase from the owner, but it collides with the provider's registered right if one was entered. The second is that a purchase from the provider during that period is a purchase from someone who is not yet the owner — Article 1075(1) says so in terms — whatever the contract's economic reality. The third is that the provider's position remains vulnerable throughout: Articles 1082(2) and 1082(3) allow termination for breakdown of shared life or for non-performance, and Article 1083(1) allows the court to re-regulate or terminate for changed circumstances, at any point before the deferred acquisition takes effect.
That last point is the one providers underestimate. Years of performed maintenance do not convert the expectancy into ownership ahead of time, and Article 1082(4) leaves a terminating party to the general rules of property law for what they are owed — not to a share of the property.
What this means in a transaction
For a buyer, a chain of title that runs through either contract is not a defect — but it is a question. Was the notary's confirmation under Article 1065(2) or 1076(2) placed on the instrument? For a transfer and distribution, did every descendant who would be called to inherit consent, or does Article 1068(1) reclassify the transfers as gifts? Was the provider a professional carer, and if so was the guardianship authority's prior consent obtained under Article 1077?
For an heir, the instinct to challenge the transaction as a disguised gift is usually the wrong first move. The statute already tells you where the vulnerabilities are, and they are formal ones. How the reserved-share calculation then works, and what actually falls into the estate, is set out in inheritance for foreign owners, and the planning perspective in succession planning for foreign assets.
Before you sign, or challenge, either contract
If a Montenegrin property you are buying, inheriting or lending against passed under a transfer-and-distribution or lifetime-maintenance contract, send us the instrument, the family tree as it stood when it was signed, and the cadastre history. We will check whether the Article 1065 or Article 1076 notarial warning was performed and recorded, whether all the Article 1064(1) consents exist, whether Article 1068(1) reclassifies any part of it as a gift, and whether Article 1077 applies to the provider. The seller-capacity questions that sit alongside this are in when the person selling isn't the person who can sell, and how we run estate files is set out in our inheritance and estates practice.
