Inheritance in case of divorce: four cases when it will have to be divided

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The division of property upon the death of one of the spouses occurs according to the rules of inheritance enshrined in the civil code of the Russian Federation. Even if the deceased left a will, his will cannot always be executed in full; certain categories of citizens are assigned rights to an obligatory share of the inheritance. And this rule of law has greater legal force than the terms of the will. For spouses, this rule is even stricter, because their property has joint .

Inheritance mechanism

First, let's figure out how property inheritance occurs. When a person dies, his property passes to his heirs. They can assume rights on the basis of a will or according to the order of family ties (Articles 1110–1114 of the Civil Code of the Russian Federation).

The estate includes real estate and other valuables owned by the deceased. It also includes his property rights and obligations.

Having entered into an inheritance, the new owner is obliged to register his right to it. Only after this will he become the real owner of real estate, intellectual rights and other valuables.

Art. 36 of the RF IC regulates the general order of ownership of inherited things. According to it, property that belonged to the husband or wife before marriage, as well as property received by inheritance before and after the conclusion of a family union, is not divided.

It turns out that based on this article, inherited things will not have to be divided. In this case, the method of entering into inheritance does not matter: by will or by law.

The joint property of the spouses is always subject to mandatory division. However, it happens that the inheritance will also be divided during a divorce. Now we will tell you when this happens using the example of a house that a husband inherited from his grandmother.

Not subject to division

Do you know that

In the event of a divorce, a spouse who has increased its value during the marriage and made a large financial contribution to its improvement and maintenance can count on part of the inheritance.

In other cases, when the spouse who is not an heir did not participate in any way - neither financially nor physically - in the improvement and improvement of the property inherited by the other spouse, then he will not be able to have rights to a part of it in the event of termination of the marriage.

This especially applies to funds received as an inheritance. The second spouse will not be able to claim them. This is the purely personal property of the heir. And even if they were in a savings bank account or were received in the form of shares, and during the marriage the amount of money increased significantly, they still will not become joint property.

Voluntary desire

The spouse who has become the owner of the house does not mind sharing it. This intention is documented, for example, in a marriage contract or agreement.

At the request of the husband, the house can not only be divided with his wife, but also the ownership can be re-registered in her name. This document must be certified by a notary.

“What if I changed my mind?” The contract can be changed or terminated by mutual consent of the husband and wife.

There is a second option for terminating a marriage contract - going to court.

Voluntary division of inherited property

According to Art. 38 of the RF IC, spouses have the right to enter into an agreement on the division of property before, during or after divorce. The parties independently determine what property is included in the agreement.

The spouse who inherited real estate or other valuables has the right to transfer them to the other party by agreement. The origin of the transferred property does not matter in this case.

It is important to consider several factors:

• notarization of the agreement is required;
• without specifying a date, the contract comes into force at the moment of signing;
• the agreement does not indicate the property belonging to the children: it is not subject to division.

Increase in property prices

Refers to a case where the value of an inherited house has increased significantly during the marriage. The point here is not a jump in prices on the real estate market: property has become much better in quality. An indispensable condition is that both spouses have contributed to improving the home.

This includes investments of joint or personal resources of the other half. This could be reconstruction, repairs or other activities in which the wife participated.

For example, a husband inherited a house in a dilapidated condition, there was no gas or water, and the site was not looked after. At that time, the property was valued at 3 million rubles.

During their marriage, the couple doubled the area of ​​their house. They built a second floor, erected a bathhouse and a garage nearby, and made a major renovation of the building using joint finances. The wife personally took care of the garden near the house, planted apple trees and flowers, and did the landscaping.

As a result, over 6 years of marriage, the market value of the building increased to 5 million rubles. In this situation, the court recognizes the wife’s rights to division of property and will allocate her a share.

“But I don’t agree!” Then you will have to prove in court that all improvements to the property were made exclusively at your expense, and your spouse had nothing to do with them.

What can be done with housing that has become shared ownership?

Continue to use together. Each spouse lives in his own room, and they use the kitchen, etc. together.

You can sell a share , but it is difficult to find a buyer for a share, and not for the whole apartment.

The easiest way is to sell the apartment and split the money. The purchase and sale agreement must be signed by two people .

If the apartment is on the ground (a house for 2-4 owners), you can try to divide it into two independent ones.

Agreement for the sale and purchase of a share of an apartment.

Purchase through sale of inheritance

The husband has a house inherited from his grandmother, and the wife inherited an apartment from her parents. A married couple decides to sell both premises and buy a mansion in the suburbs.

In this case, the purchased house will become jointly acquired property and will be divided in half during the divorce.

“I am against such a division! My home! Bring your arguments to the court, it will make the final decision.

If the spouses purchase a house without selling the wife’s apartment, she will not be able to claim it during a divorce. Then the husband should become the owner of the mansion, since the house was bought using the inheritance he received.

How is inherited property received during marriage divided in case of divorce?

The law provides for the following options for dividing property:

1. Voluntarily. The option implies a written agreement between the spouses (agreement or marriage contract).
2. Forcibly. The division of assets is carried out by court decision.

In practice, the issue of dividing the joint property of spouses is resolved faster than when dividing personal property. The applicant will have to prove his participation in improving the condition of the disputed object. Whereas to allocate a share in the common property, it is enough to have a marriage registration certificate.

Voluntary section

Spouses have the right to independently determine the size of shares in personal and joint property. To do this you need to fill out:

• marriage contract;
• agreement on the allocation of shares.

A marriage contract is an agreement that is drawn up by the parties before marriage and during the marriage. The parties can make changes to the text any number of times. Therefore, when receiving an inheritance during marriage, the spouses can include it in the document. The contract comes into force from the moment of notarization.

An agreement on the allocation of shares can be drawn up during the marriage or within 3 years from the date of its dissolution. The document may also include the procedure for dividing personal or joint property. The main condition is the consent of the spouses to the presented conditions. The agreement comes into force from the moment of notarization.

Sample agreement on the allocation of shares in the property of spouses

Important! The difference between the document is the possibility of including in the agreement information exclusively about the division of property. A prenuptial agreement may contain provisions for many other property issues between spouses. For example, alimony for the maintenance of an ex-husband.

Thus, if the heir does not object or the spouses have come to an alternative agreement (exchange of personal property), then the inherited property can be divided by one of the documents.

Expenses

When notarizing an agreement on the division of property, the parties pay 0.5% of the transaction amount . The minimum bet is 300 rubles, the maximum collection amount is 20,000 rubles . Notary services are paid separately.

The cost of a prenuptial agreement is significantly higher. The state fee for a notary has a fixed cost. It is 500 rubles . However, for legal and technical services you will have to pay from 30,000 rubles.

Judicial section

If the spouses cannot find a common language, then they will have to go to court. Typically, the court awards each spouse ½ of the property .

However, the law allows for the possibility of deviation from equality of shares (Article 39 of the RF IC). For example, the court may increase the spouse’s share in the interests of the child who will live with the mother.

A similar division procedure is used in the event of disputes. For example, if a spouse claims the inheritance property of the husband/wife.

Procedure

To formalize the division of inherited property in court, you must:

1. Collect evidence.
2. Prepare a statement of claim.
3. Send documentation to the court.
4. Attend court proceedings.
5. Get a court decision.
6. Register the property in accordance with the court decision.

Evidence base

When filing a claim, you must prepare the following documents:

• plaintiff's civil passport;
• marriage or divorce registration certificate;
• title papers for the disputed object;
• evidence of participation in increasing the value of the object;
• property value report;
• proof of payment of state duty.

The statement of claim is filed according to the number of participants (plaintiff, defendant, court, third parties).

If the applicant claims the inherited property of the spouse, then he will have to confirm financial investments and the increase in the value of the disputed object.

Statement

Forced division of property involves filing a lawsuit in court. It is advisable to include in the application only a requirement for division of property.

The application form is prescribed by law. When preparing a procedural document, you must take into account the requirements of Art. 131 Code of Civil Procedure of the Russian Federation.

The application includes:

1. Name of the district court.
2. Information about the plaintiff/defendant/third parties.
3. Name of the procedural document.
4. Subject of the claim.
5. The circumstances of the case and the facts supporting them.
6. Amount of claims.
7. List of attached documents.
8. Date of filing the claim.
9. Plaintiff's signature.

The content of the statement of claim depends on the factual circumstances of the case.

Sample statement of claim for division of inherited property

Expenses

When filing a statement of claim, a state fee is withheld from the plaintiff. It is calculated as a percentage of the claim price.

Procedure for calculating state duty

An assessment will be required to make the necessary calculations. The plaintiff can take an extract from the cadastral office or order an assessment from a private company. The higher the value of the property, the higher the fee.

However, the law sets limits on the duty. The minimum payment amount is 400 rubles, the maximum collection amount is 60,000 rubles .

Example. The husband is the heir to an apartment in the city center. During the divorce, the question of housing division arose. The man refused to resolve the issue voluntarily. The woman was forced to move in with her mother. She later went to court. The property was valued at 3,000,000 rubles. The plaintiff was entitled to half of the apartment - 3,000,000 /2 = 1.5 million rubles. Calculation of the fee amount – 15700 (13200+2500) rubles.

Deadlines

The claim must be filed within 3 years . Otherwise, the defendant may declare the claims rejected due to missing the statute of limitations (Article 199 of the Civil Code of the Russian Federation).

Husband and wife are both heirs

There are cases when both spouses inherit. This happens after the death of a common child. If there is no will, by law the house will become the property in equal shares. This inheritance is considered personal property and is therefore not divided during a divorce.

If there is a will, the division may be different: more for one, less for another. Even a stranger has the right to dispose of the inheritance in favor of a married couple. Then both husband and wife will have rights to the house when dividing property. Shares are allocated to them in accordance with the will.

So, we have looked at exceptions to the generally accepted rule that an inherited house or apartment is not divided during a divorce. Knowing them, you can avoid misunderstandings when dividing property with your ex.

It should be noted that inherited copyrights, money, shares, deposits, as well as debts of the deceased during a divorce will not be divided in any case.

When can you divide your inheritance?

Let's look at several cases where inheritance received during a divorce is divided. These cases are legally formalized and reflected in Article 37 of the Family Code of the Russian Federation.

1. One of the spouses inherited an apartment that required renovation. During the marriage, the spouses used joint money (or the money of the spouse who did not receive the inheritance) to make expensive repairs or remodeling. As a result, the value of this apartment has increased significantly. In this case, both spouses have rights to shares in this apartment upon division, since after investing significant funds of both spouses, it became their joint property. How to divide an apartment in shared ownership during a divorce, read our article.

2. One spouse became the heir to a plot of land, neglected, not cultivated for a long time, without buildings. While the couple were married, they cultivated this plot every year, planted trees, and built a country house. The cost of this plot has doubled or even tripled due to joint cash investments and the spouses’ own labor. In the event of a divorce, this plot together with the house will be divided equally between the spouses, because now it is already joint property. However, the division of a land plot during a divorce can only be made if it meets some conditions, which we describe on the page - https://divorceinfo.ru/2300-razdel-zemelnogo-uchastka-pri-razvode-suprugov

3. The spouse received a comfortable apartment as an inheritance and immediately sold it. The money from the sale was partially spent on the needs of the family. Later, the spouses decided to purchase another property (or some expensive property), adding funds from the general budget. This property (or other property) purchased during marriage will be subject to division between spouses in the event of divorce in equal shares.

It’s another matter if, having sold the inherited apartment, the heir-spouse put the entire proceeds into a bank deposit opened in his name. Then the second spouse will hardly be able to claim both this money and the property purchased only with it later during the marriage. You can hire a good lawyer and try to prove to the court that the property is still common, but the chances of winning such a case are negligible.

These are just general examples that are often found in court practice. But each case is unique, and you always need to fight for your rights.

In what situations can you avoid sectioning?

Even if the spouses did not sign any agreements with each other, there are cases when the court can order the division of the inheritance during a divorce.

Read below about when the division of inheritance cannot be avoided.

Increasing the value of an inheritance at the expense of one of the spouses or joint funds

Let's assume that one of the spouses inherits an apartment or a car. However, through the efforts of the second half or through general savings in the property, a set of improvements was made, as a result of which the property increased significantly in price.

With this option, the object of inheritance can be recognized as common property and divided by virtue of a court decision.

Using inheritance for family needs

Let's imagine such a situation. One of the spouses inherited a country house from their grandmother.

It turned out to be not particularly needed, and at the family council it was decided to sell it and add the proceeds to purchase a new apartment. Such real estate will fall under division in the event of a possible divorce.

In practice, there are other examples where spouses manage to divide inherited property with the help of the court. And here the work of a lawyer and his professionalism play an important role.

What cannot be divided

In the event of a divorce, part of the property may not be subject to division. This category includes property that, for one reason or another, in the event of division, will lose its functions. This also includes those types of property that cannot be recognized as jointly acquired property for the reason that the other half did not take part in their maintenance, improvement or repair. Among other options, it is worth noting copyright, which by law is not subject to division. It should be taken into account that although the rights themselves are not divided, the income received from their use is divided.

Division of part of the property

You cannot refuse part of your property so as not to divide it, and accept everything else. This is a mandatory rule provided by law. The heir has the right to refuse new property, but this will mean that he gives up everything that he could receive, and not a specific part. In fact, he has only two options: accept or not accept. The second option may be relevant in the case where a significant part of the inheritance consists of serious debts, the payments for which significantly exceed the potential value of the rest of the new property.

Arbitrage practice

The issue of division of inherited property is most often resolved through the court. If we look at judicial practice over the past few years, it becomes obvious that such property is very rarely divided. Only if there is serious documentary evidence of the fact that general funds were invested in the property.

We need checks, bank statements, etc.
Otherwise, the judges decide to transfer the property to the party who is the heir. The burden of collecting evidence will rest entirely with the plaintiff. The rules for the division of joint property do not apply to property received by inheritance. With rare exceptions, the right to it is retained by the person who is the official heir.

Consulting and legal support

As we can see, dividing inherited property between former spouses is difficult, but possible. Before starting this whole long process, it is useful to talk with a lawyer. He will study the situation, documents and give his forecast regarding the real prospects of the case.

If necessary, a lawyer for inheritance and family disputes will draw up a statement of claim and represent the interests of one of the spouses in court hearings. At the same time, the specialist will operate not only with the norms of legislation, but also with the current judicial practice of the Supreme Court and other authorities.

A lawyer is also necessary when the case of division of property is already being considered in an appeal or cassation. After familiarizing yourself with all the materials, a specialist may have a completely different legal position on the essence of the dispute.

Author: Oleg Vladimirovich Roslyakov, source.

Are there statutes of limitations?

We will proceed from the fact that the object of inheritance has all the signs of joint ownership of the spouses.

The legislation for its division provides a three-year limitation period. Its course begins from the moment when the second spouse became aware of the infringement of his rights.

Let's explain in more detail. The fact is that even after a divorce, joint property continues to remain so.

Consequently, its disposal must be carried out with the approval of the other spouse, even the former. And if this rule is neglected, the statute of limitations will begin to run for the purpose of dividing property.

When partition is not possible in principle

In fact, if the inheritance was received during marriage, and the second spouse did not make any efforts to improve the property, and common money was not spent on it, then it is unlikely that it will be possible to divide the property.

In addition, care should be taken to ensure that all necessary documents regarding the inheritance are completed.

Otherwise, it is possible that the second spouse may challenge the fact of acceptance of the inheritance and raise the issue of dividing property in court.