Inheritance of property acquired before marriage: in the presence of a will and by law

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The wife or husband who survives the other half are claimants to the spouse's inheritance on the basis of a will or act as first-priority heirs by law. For some couples, solving the problem of inheritance is so important that the registration of relations in the registry office is preceded by the signing of a marriage contract.

The question of how property acquired before marriage is inherited is multifaceted and touches on the appropriateness of officially registering close relationships and drawing up a will.

Who owns the premarital property of the deceased spouse?

As a general rule, everything that each spouse owned before marriage remains their personal property and cannot be recognized as community property. The following situations are exceptions:

one of the spouses, at the expense of personal funds and efforts, significantly improved the premarital property of the other spouse or increased its value (for example, if an apartment belonging to the wife before marriage was renovated during marriage at the expense of joint funds, or an unfinished construction project was put into operation during the marriage, in including thanks to the personal or financial participation of the husband);
the spouses have entered into a marriage contract between themselves, under the terms of which their premarital property is included in the joint property of the husband and wife;
Before marriage, the deceased acquired real estate with the help of a mortgage, while the mortgage was repaid during the marriage from the joint funds of the spouses. In such a situation, it is necessary to establish this fact through the court in order to have the right to allocate the surviving spouse’s share in the ownership of real estate acquired with a mortgage before marriage.

Thus, if the testator was officially married, all his property can be divided into two categories:

his personal property, in which the second spouse does not have a share;
common joint property with the surviving spouse, who, as a general rule, is entitled to half of it.

Except for the cases provided for in Art. 37 of the RF IC, the second spouse can only claim the personal premarital property of the deceased spouse on a common basis with the other heirs. Such property is not considered jointly acquired property, therefore the second spouse does not have a mandatory share in it.

Consequently, in order to protect their property interests, the spouse of the deceased testator must submit an application to the notary for the allocation of the spousal share from the inheritance mass. In this case, the remaining heirs will not be able to claim this property.

What documents does a notary need to formalize and enter into an inheritance?

Examples

Situation 1. Citizen S. lived with citizen O. without formalizing the relationship for 10 years, during which he purchased a house and a car, after which the union was officially registered. After his death, the claimants to the property were: his legal wife, daughter and son from his first marriage. Since citizen S. did not make a will, the inheritance was divided between the claimants in equal shares, 1/3 each.
Situation 2. How would the division occur in the above example if citizen S. and citizen O. had previously registered their relationship and the house and car were purchased after marriage? The spouse would have the right to allocate the marital share, that is, ½ of the jointly acquired property. The remaining part would be divided among all first-stage applicants according to the law. Thus, the shares of each of the heirs would be: spouses - 4/6, daughters and sons - 1/6 each.
Situation 3. If citizen S. had not registered a union with citizen O., then in the absence of a will allocating her a share of property, O. could not be among the applicants (except for cases where the right to an obligatory share of the inheritance applies).
Situation 4. If citizen S. made a will, then regardless of whether a marriage was concluded, the property will be distributed between the persons indicated in the document in the shares determined by the testator or equally.

Often, spouses do not even know what share of the property is due to them. Relatives of the deceased can be misleading by arguing that the wife has no rights to the values acquired by the husband. It is especially difficult to resolve issues if the marriage has not been formalized. Even a will drawn up unprofessionally, illiterately, does not guarantee the acquisition of valuables and can be challenged or declared void.

What to do in such situations? Enlist the support of specialists in the field of jurisprudence, namely, lawyers from the site ros-nasledstvo.ru. It is easy to get what you are entitled to by law if you know your rights and act on the basis of the law.

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Inheritance of a spouse's premarital property by law

In the absence of a will, the order of inheritance is determined by the rules established by the Civil Code of the Russian Federation. The document provides for the order in which potential heirs are called to accept the inheritance.

So, first of all, children, wife/husband and parents of the deceased can claim the inheritance. In this case, the property is distributed between them in equal shares, including that which belonged to the deceased before marriage. Such property is the personal property of the deceased, therefore, there is no share of the surviving spouse in it, and it is completely included in the estate and distributed equally among the heirs.

The law includes brothers, grandmothers, sisters and grandfathers of the deceased as second-stage heirs. They have the right to claim the inheritance only if the heirs of the first priority for some reason did not enter into the inheritance. For example, there are no such heirs; they voluntarily refused to accept the inheritance or, conversely, were forcibly excluded from inheritance.

How much does it cost to enter into an inheritance with a notary?

Trial

It is possible to divide real estate in court, but this will cost significantly more. True, the plaintiff, who pays the state fee, has every right, if the case wins, to demand compensation from the defendant for the amount spent.

Conduct a real estate appraisal. As in the case of a voluntary agreement, this is necessary to determine the amount of the state fee.
Draw up a statement of claim (see sample below).
Send an application to the court at the place of registration or location of the disputed property.
Pay the state fee.
Wait for the court's decision (it is recommended to attend the hearing). If the situation is complex/controversial, it is better to seek the services of a divorce lawyer.
Act in accordance with the court decision. If one of the parties refuses to fulfill its obligations specified in the court decision, it can be forced with the help of the enforcement service.

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Features of inheritance by will

If the deceased during his lifetime made an order regarding how his property should be distributed after death, the provisions of the Civil Code on the order of inheritance as a general rule do not apply.

In this case, the spouse can solely receive all the property, regardless of when it was acquired by the deceased - before marriage or during the marriage relationship. The opposite option is also possible, when the surviving spouse will be deprived of the right to receive things, real estate, or the car of the deceased, if the latter ordered that it be transferred into the ownership of other persons.

Recipients of inheritance under a will can be not only individuals, but also government authorities. In this case, it is not necessary to dispose of all the property: the testator can indicate in the will only part of his property, distributing it among the heirs at his own discretion. The property of the deceased not specified in the will will be distributed among the heirs according to the general rules enshrined in the Civil Code of the Russian Federation.

How to find out if there is a will for inheritance

Methods of inheritance

The transfer of the testator's property to legal successors is carried out:

within the law;
by will.

The first method is most often used. The rule of priority applies here.

The first priority applicants are the family members of the deceased citizen:

Parents.
Blood/adopted children.
Living spouse.

After them come the brothers/sisters and grandparents of the testator.

Reasons for the transfer of property to the next legal successors

No.	Cause
1	Non-acceptance of property by priority heirs
2	Refusal of 1st priority recipients
3	Removal of main claimants from inheritance

The inheritance may include any movable/immovable property. Identified assets are divided equally between claimants of the same line.

The law does not provide any preferences for individual family members. If the testator had dependents, then they are included in the heirs of the corresponding line.

The second method of inheritance is by will. Here, the procedure for distribution of property and the composition of legal successors can be significantly changed:

The owner has the right to call on close or distant relatives to inherit.
Also, organizations or authorities can act as legal successors.
At the same time, he can deprive the property of any of the legitimate claimants.
The will can indicate the type of property and the size of the shares of legal successors.
The testator may also make a conditional will or appoint an executor.
If the order applies to part of the property, then the remainder of the property is inherited by law.

The only drawback of the order is that the testator does not have the right to deprive the property of obligatory legal successors. These include:

parents who have lost their ability to work,
dependents,
disabled spouse of the deceased subject;
young children.

If such persons are identified, they will be included in the list of applicants, regardless of the text of the will.

Take yours and leave your debts behind?

The inheritance mass does not always include only assets (expensive and liquid property). If the deceased had debts during his lifetime, but did not have time to pay them off, such obligations pass to his heirs. At the same time, the law prohibits accepting only the liquid part of the inheritance. Consequently, each heir who has legally received the property of the deceased becomes liable for his debts to the extent of the value of the share that has passed to him.

It is worth considering that debts that arose before marriage can be classified as joint property of the spouses: for example, if the loan was spent on the purchase of common real estate or a family car, renovation of the surviving spouse’s apartment, or other needs of both spouses.

Property division rules

If you pay attention to Art. 39 of the IC of Russia specifically at paragraph 1, it says that the real estate that the spouses could acquire during the marriage belongs to them equally. In case of divorce, everyone will receive the same share.

How to get out of the situation - payment of compensation

There are things that cannot be divided and distributed between 1/2 of the former spouses. Then the judge intervenes in the case. He gives some valuable item, for example, a car, a gold box to his wife or husband, and he pays half the cost to his life partner.

When giving away an item, the court takes into account which of the life partners needs a particular item most, who it belonged to, and who used it constantly during the marriage.

Arbitrage practice

During a divorce, animals of valuable breeds are also divided. If a wife was attached to a cat, she would care for the animal, take it to exhibitions, beauty salons and provide treatment. The court took into account the conditions most suitable for the cat’s life. This is an apartment that was left to the wife, and the animal lived there since childhood, did not go anywhere and is tied to the premises. The husband was awarded compensation for the cost of the expensive furry animal.

While living together, the life partners acquired a car, but the rights to it were registered in the name of the wife and it was she who constantly drove it. Due to disability, the husband could not use the car. Taking this into account, the court considered it necessary to give the car to the woman, and the husband was awarded compensation in the amount of half the cost of the car.

If the marriage was not formalized

While calling themselves the spouse of the deceased, not all potential heirs are such. Thus, from the point of view of family and civil law, only the spouse whose marriage with the deceased was registered in the manner prescribed by law has the right to an obligatory share in the inheritance. In other words, the so-called “civil marriage” does not give rise to a regime of common joint property, regardless of the value of the property acquired by the man and woman and the duration of cohabitation.

Therefore, in the event of the death of one of the couple, in this case the second person will not have the right to inherit his premarital property if the marriage was not registered. There is an exception to this rule: if a potential heir can prove that he was dependent on the deceased testator, such a person will have the right to claim an obligatory share in the inheritance. The fact of being a dependent can be established through the court if the following circumstances exist:

living together with the testator for at least one year before his death;
joint farming;
incapacity for work of the person claiming to be a dependent.

The size of the obligatory share in the inheritance of such a person is determined according to the general rules on the order of inheritance. If the deceased left a will, then such a citizen is entitled to at least half of what he could claim in the event of inheritance by law.

In order to protect yourself and legally gain the opportunity to inherit the property of your de facto (civil) spouse, you must draw up a will with the appropriate instructions. And in the case of acquiring expensive property in a civil marriage, it is recommended to register it in equal shares for the man and woman.

How is property acquired before marriage inherited?

Inheritance issues quite often concern the division of the property of the deceased owner between relatives according to a will or law.

Particular attention is paid to acquiring rights for spouses, since they are closest relatives

Most often, spouses inherit by law as first-rank applicants, but there are controversial situations even in the presence of a will.

Knowing the basic provisions of spousal inheritance will help you avoid legal mistakes and comply with established legal regulations.

Inheritance of property acquired before marriage

In this situation, Article 36 of the Civil Code of the Russian Federation applies, which regulates the transfer of ownership of the personal property of one of the spouses.

Property owned by a citizen before marriage, also donated and inherited by him during marriage, is not joint property of the spouses. According to Art.

1142 of the Civil Code of the Russian Federation, the heirs of such property are members of the family of the deceased, namely children, spouse and parents.

When dividing the testator's personal property that is not related to the joint marital property, no division will be required, and the testator's rights must be confirmed by state certificates of ownership.

For example, a citizen received real estate as a gift while he was married.

After his death, half is not allocated to the wife, and the entire property inherited by the relatives is divided between them in equal shares. At the same time, children from all marriages and unregistered relationships are called to inherit if there is evidence of kinship.

The owner of the property can leave a will and make a disposition at his own discretion. When writing a will, you will need to provide documents for personal ownership or joint ownership with the second spouse.

The spouse will automatically receive half, the second, belonging to the testator, will be divided among relatives. When drawing up a will, you should remember about compulsory heirs.

These are disabled, minor family members, as well as disabled dependents of the testator.

In this case, dependents may not be related, but live together for more than one year with the deceased and receive maintenance from him. If the dependent is a relative, the residence requirement is removed.

Inheriting property before marriage can be extremely difficult if the property has been transformed, altered or expanded.

For example, a man had a house before marriage, and after marriage he invested joint funds in improvements for many years.

The woman will have to prove that she has the right to half as joint ownership, since she invested significant funds in a house that does not legally belong to her.

Such frequent conflicts are resolved in court, whose verdict on living in an indivisible premises or the share ratio in connection with the invested funds is the only basis for notarial approval of the right.

The division of indivisible property is based on the preemptive right of the citizen who lived with the deceased and ran a joint household. If there is an agreement between the interested parties, the heir who has received the right of residence pays monetary or property compensation to the remaining participants in the case.

Inheritance in a civil marriage

Civil cohabitation, not supported by an official certificate, does not provide grounds for claiming inheritance rights as a spouse.

Inheritance of property acquired before a civil marriage can be carried out by will.

If a person has the status of a disabled dependent who has lived for more than a year in an unregistered relationship with the testator, then this may serve as the basis for claiming the right.

When registering rights, family members must pay a fee of 0.3% of the purchase price, other citizens pay 0.6% of the ownership price.

Thus, the common-law spouse, as one who does not have official confirmation of marriage, will have to pay 0.6% of the shared ownership assigned by the notary.

Where to apply to receive an inheritance

In the Russian Federation, notaries handle cases related to the inheritance of the property of a deceased person. After the death of the testator, interested parties must contact such a specialist with an application to accept the inheritance. Which notary should I contact when entering into an inheritance?

The notary will determine in what order the inheritance will be carried out: by law or by will, determine the shares due to each heir, and issue them with the appropriate documents.

When disputes arise between potential recipients of inheritance, most of them are resolved in court. Thus, in order to allocate the marital share from the personal (premarital) property of the deceased on the basis enshrined in Art. 37 of the Family Code of the Russian Federation, the surviving spouse must file a claim in court for the allocation of the marital share from the inherited property.

You can submit an application to accept an inheritance within 6 months from the date of death of the testator. If this deadline is missed, in exceptional cases it can be restored, but only by court decision and if there are good reasons.

Inheritance in a civil marriage

Civil cohabitation, not supported by an official certificate, does not provide grounds for claiming inheritance rights as a spouse. Inheritance of property acquired before a civil marriage can be carried out by will. If a person has the status of a disabled dependent who has lived for more than a year in an unregistered relationship with the testator, then this may serve as the basis for claiming the right.

For example, a common-law spouse is retired for any reason, lived together for more than a year and received care from a deceased person. This is the only legal basis on which a common-law spouse, as the legal heir of the last, eighth stage, can be called upon to receive an inheritance.

When registering rights, family members must pay a fee of 0.3% of the purchase price, other citizens pay 0.6% of the ownership price.

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Inheriting property after the death of one of the spouses is a painful and sensitive topic. When spouses live together happily, such questions do not come to mind.

However, due to life and often tragic circumstances, we have to deal with such issues. Ambiguous controversial situations arise when it comes to inheriting property acquired by a deceased spouse before marriage.

Issues of receiving and registering an inheritance are regulated by the norms of family law (Articles: 33–38 of the RF IC), civil legislation (Articles: 256, 1118, 1119, 1141, 1142, 1149, 1150 of the RF Civil Code).

At the same time, in order to take into account all the nuances in such a complex matter as inheritance, it is necessary to navigate the notarial legislation and regulations of the Supreme Court on these issues (Resolution of May 29, 2012 No. 9).

Only a lawyer specializing in this field or an experienced notary can competently formalize the inheritance procedure, taking into account all controversial issues. However, you can also acquire general practical knowledge in the field of inheritance on your own.

Additional features and nuances

If a man independently saved money to purchase an apartment, but bought housing only after registering his marriage, then it becomes common. It will be difficult for him to prove the fact that the apartment was purchased exclusively with his funds.

If a man bought a home before marriage, but received official owner status after the marriage was registered, he will need to provide the court with documents that prove the fact that the payment was made before marriage. If you have payment documents, the apartment will not become common marital property.

If there are children

According to the Family Code of the Russian Federation, minors have the right to own property, but they do not have rights to parental property purchased before marriage. Children have the right to own real estate only when it was given to them or received by them as an inheritance. The child has the right to use living space belonging to the parents. But if one of the parents owns any real estate, the child has no rights to own it.

What belongs to children cannot be divided

What does it mean? By law, parents are required to provide for their children until they reach adulthood. But immediately after the child reaches the age of majority, the parent has every right to discharge him. As in the previous case, children can live in a home purchased by parents before the wedding, but they do not have ownership rights.

In the opposite situation the same thing. Parents have no right to claim the child's property. Living space acquired before registration of the relationship belongs only to the owner and is not subject to division. The second spouse has no rights to it. If the second spouse has invested in improving living conditions, he has the right to claim part of the living space. The division of real estate purchased with a mortgage is carried out depending on who the mortgage was issued to and who made the payments. In general, all questions have caveats depending on the situation.