In the modern world, not all couples are in a hurry to officially register their marriage. Such relationships are usually called civil marriage. The woman in this union is called a common-law wife, and officially a cohabitant. In such families, spouses manage a common household, give birth to children, and can live wonderfully and happily as long as everyone is alive and well. But different things happen in life, and when a spouse dies, the question arises whether a common-law wife has the right to inherit after the death of her husband.
The Russian Civil Code states that according to the law there is a sequence of inheritance. Queues are formed according to the applicants' affiliation with the deceased and the degree of relationship with him.
But a common-law wife or husband is not mentioned anywhere, therefore the rights of spouses when inheriting in a civil marriage are not provided for in law. Lawyers do not use the term “civil marriage”; among legal professionals they refer to actual marital relations.
If the marriage was not registered in the registry office, then according to the law the cohabitant has no rights and cannot claim a share of the inheritance.
But there are some exceptions that should be carefully considered.
How to obtain inheritance rights?
All legitimate claimants who have the right to receive property or monetary property are distributed in the following sequence:
- The first priority of legal heirs is the children of the deceased, the legal spouse, and the parents of the testator.
- The second line of heirs are the sisters and brothers of the deceased, grandfather and grandmother on both lines.
- The third line of applicants are the siblings and half-brothers of the mother and father of the deceased.
- The fourth line is the mothers and fathers of grandparents.
- The fifth line is the brothers and sisters of grandparents.
- Children of brothers and sisters of all grandparents, as well as children whose parents are grandchildren, cousins.
- Non-natural parents - stepfather or stepmother, as well as non-natural children. Incapacitated dependents of the deceased.
Thus, after the death of one of the spouses, a common-law wife or husband can be included in the heirs of the eighth line if they were dependent on the deceased due to lack of ability to work or being a minor.
The unofficial wife, who is mentioned in the will, by rights belongs to the line in which the heirs were found. The absence of the actual wife in the list of heirs determined by law does not deprive the right of inheritance of her child born from the testator or conceived during his lifetime. He is included in the first place of successors by law and until he reaches 18 years of age is the legal holder of a mandatory share of the inheritance. If the child is underage, his legal representative in accepting and disposing of property rights is the mother.
But for this it is necessary to prove the fact of marriage. Even if the court recognizes the actual residence of one family, there is no possibility of being considered one of the heirs of the first priority.
If there is no will, the deceased's property will be distributed in full equally among the priority heirs.
Subsequent queues that follow the priority ones will be denied the right to inherit even a small part of the property.
What can you claim?
Since a cohabitant cannot legally receive property, it is possible to claim an inheritance only if the following circumstances exist:
- The common-law wife is indicated in the text of the will.
- The cohabitant is incapacitated and lived as a dependent of the testator. In the latter case, the common-law wife is included in the conditional eighth line of heirs. The cohabitant will be able to enter into inheritance only when representatives of the previous seven orders are absent.
Also, according to the husband’s will, the “common-law” wife has the right to become a legatee and enjoy certain material benefits on special grounds specified in the will.
But even here the woman will face many difficulties. To do this, she will need a complete evidence base. In most cases, a common-law wife will have to defend her right to inheritance in court.
If the wife has not worked for the last year and was fully supported by the deceased common-law spouse, then she can be included in the list of legal heirs only after the fact of incapacity is proven. The evidence will be medical certificates that confirm that the common-law spouse has been disabled for more than a year.
Let's sum it up
Thus, a common-law spouse after the death of his life partner is unlikely to be able to inherit. After the death of her husband, a woman will need to prove paternity, if this fact has not been established, in order to at least guarantee a share of the property for her minor children.
Most likely, in the future, legislation will fix the rights of common-law spouses, since currently the number of such marriages is only increasing. Thus, in Ukraine the following law applies: if spouses have cohabited together for at least 5 years, then their marriage union is recognized on an official basis. However, even in this situation they are in the 4th line of inheritance recipients.
So far, common-law spouses who have outlived their life partners have to independently fight for the right to inheritance. If the marriage is unofficial, then it is best for people to immediately register shares in property assets in order to prevent possible controversial situations in the future.
How to register and receive an inheritance for a common-law wife
After the actual spouse has died, the wife, if the reasons listed above exist, can start registering the inheritance. To do this you need to do the following:
- Appeal to a notary operating in the territory of the last place of residence of the deceased or keeping the second copy of his will.
- Writing an application for acceptance of property rights or issuance of a certificate of their existence.
- Providing the necessary package of papers.
- Payment of state duty (in case of receiving a certificate of inheritance).
When accepting an inheritance, you must have the following documents with you:
- Death certificate of husband.
- Will or certificates confirming the fact of dependency.
- An act of deregistration of the deceased at his last place of residence.
- Your passport.
Depending on the type of inherited property, title deeds for the property, a land boundary plan, an extract from the Unified State Register for real estate, a vehicle passport, a certificate of absence of debt on property and others may be required.
How to prove the fact of cohabitation
If a common-law wife enters into inheritance as a dependent of her late husband, she will first need to recognize the fact of cohabitation and maintenance at his expense.
This can be done exclusively in court and only in the presence of the following circumstances:
- disability;
- living with the testator and receiving the main amount of livelihood from him for more than twelve months;
- availability of evidence of the facts translated above;
- absence of the status of an unworthy heir (assigned by the court for illegal actions against the testator or other heirs).
Algorithm of actions of the de facto wife to recognize the fact of her dependence at the expense of the deceased spouse:
- Collection of documentary evidence (certificate confirming disability, testimony of witnesses, etc.).
- Writing an application (indicate: the name of the court, your personal and contact information, the period and cause of the disability, information about the de facto spouse, circumstances confirming the fact of dependency, the purpose of the application, the essence of the request and a list of attached documents). Submitting an application and accompanying official papers to the district court at your place of residence.
- Waiting for a court order.
In case of a positive decision of the court, the common-law wife receives a documented copy of it and, on its basis, begins to formalize her legal rights to the inheritance.
Rules for drawing up an application
To write an application, you must comply with the following rules:
- the application is drawn up in free form - there is no strictly defined writing sample;
- at the top of the application the following information is indicated: the name of the notary agency and the address at which it is located, followed by the full name, registration address, postal code and contact information;
- the text part provides information about the deceased spouse: full name, date of birth, last registered address, date of death;
- Below is information about the applicant - common-law spouse: full name, marital status (“common-law spouse”), location address;
- Next, you should indicate what property the woman is claiming (name, address, cost);
- in the final part you must indicate the date of writing the application, full name, transcript and your signature.
Deadlines
The period allotted for declaring one's rights to inheritance is limited to 6 months from the date of death of the testator. In the case of sub-appointment of the actual wife in the will, the period for taking over rights is 3 months after the non-acceptance of the testator’s property by the persons appointed by him or 6 months from the moment of their refusal to inherit. Receiving a testamentary refusal is permissible within 3 years from the date of opening of the inheritance.
Missing the established deadlines is fraught with loss of inheritance rights. But if there are good reasons, the period for their registration can be extended in court.
Situations where the successor did not and could not know about the death of the testator or, for other objective reasons, could not timely express his interest in accepting inheritance rights are valid for restoring the deadline for accepting an inheritance. These may include prolonged illness, complete or partial incapacity, preparation of documents necessary for the case, long absence without the opportunity to send a notarized application for acceptance of inheritance by mail, and others. There are often requests from clients who are interested in how to prove a civil marriage in order to acquire the right to the inheritance of a deceased partner. Unfortunately, the relevance of this issue disappeared back in 1969, when the Code on Marriage and Family of the RSFSR finally deprived the actual marriage of legal significance, and at the same time excluded the possibility of proving the right to the property of the deceased unofficial spouse. The current Family Code of the Russian Federation supports this position and makes it impossible to inherit according to the law in accordance with the Civil Code of the Russian Federation.
However, there are other grounds for receiving a husband’s share of property, which are indicated in the article. But even their presence does not free the actual wife from disputes and the need to defend her rights, in some cases even in court.
How can a common-law wife enter into an inheritance?
Any citizen of Russia has the right to dispose of his property at his own discretion. Therefore, if a man lives with a woman not in an official marriage, in order to ensure the right to inheritance of his common-law wife after the death of her common-law husband, the man can draw up a will and assign all or part of his property to his cohabitant.
It is important to take into account that in the will he must clearly indicate exactly what share of his property he bequeaths to his common-law spouse.
In the same way, a common-law partner can claim his or her spouse's inheritance. The rights of spouses in inheritance in a civil marriage arise on the basis of a will.
But it is worth taking into account that if a cohabitant has the right to inherit under a will, this does not in all cases mean that this right will be realized.
There is a possibility of the disposition being challenged by the legal heirs. If such lawsuits begin, the spouse can also defend her interests. For example, the fact that the document was drawn up in an incapacitated state cannot be the basis for declaring a will worthless. To do this, the applicant presents to the court the testimony of witnesses and certificates from a psychiatric clinic.
The heir under the will is also not prohibited from presenting to the court his evidence that confirms the testator’s legal capacity. The court decision will be made based on the totality of evidence presented by all parties.
Legal consequences of civil marriage when children inherit property
If a child is born and the father is indicated on the birth certificate, then the baby is considered the heir of the first priority. In the case where the father died earlier, and the mother did not have time to register everything properly, then she will have to find all the reasons and provide the court with evidence that the child was a relative of the deceased and was supported by him.
To resolve such a situation, the mother must submit an application, but not a claim, but describing the current situation. Perhaps one of the heirs will not agree with this fact and will file a claim in order to establish paternity, this is stated in Art. 48 of the Family Code.
As stated in Art. 1044 of the Civil Code of the Russian Federation, children born at the time of opening of the inheritance and those who were conceived during his life and born alive after his death will be able to claim their father’s property.
There are situations when a child born in a second marriage receives an inheritance under a will, then the baby born in the first marriage, unfortunately, does not have the opportunity to take his part. In such a situation, you can find a positive point, stipulated in Article 1149 of the Civil Code of the Russian Federation. We are talking about the right to an obligatory share.
Taking into account this principle, if the testator writes a will in favor of another relative, but at the same time has a minor child, an incapacitated wife or parents to support it, it will not have proper legal force and is considered worthless. They can receive half the share as they would have been entitled to at the time of legal inheritance.
It turns out that if a man lived in an unregistered marriage with a woman who had a child from his first marriage who is disabled or receives a pension, then by the time the inheritance is opened he will claim a share of the property of his deceased father, even taking into account the fact that there is a will in benefit of another person.
What you need to do to prove your right to inheritance
In order for a common-law wife to enter into the inheritance of her partner, there are several ways to prove this right to the relatives of the deceased:
Preliminarily draw up an agreement with your common-law spouse, with whom you can register part of the property and real estate that a woman can receive after the death of her partner. Such a document is called a property division agreement. It must be in writing and certified by a notary. Only after this the document will have legal force.
Prove your right legally. This is a rather long and difficult process. But defending your rights to property to relatives is quite possible. To do this, it is necessary to collect evidence that the woman lived for a certain time with the deceased, ran a common household with him, was employed and bought some of the things from the property that is to be divided.
What documents can be evidence
The wife will have to defend the right to inheritance after the death of her common-law husband in court. Therefore, you will need to draw up a statement of claim and present the necessary documents along with it:
- A certificate from the housing office stating that the applicant had temporary or permanent registration in the apartment, which was the property of the deceased.
- If common-law spouses rented housing and paid for it in half, then you need to submit a lease agreement where both payers are indicated.
- In the case where the applicant did not have registration in the deceased’s living space, a certificate of cohabitation can only be obtained when the neighbors confirm this fact.
- A copy of the work book with a record of employment.
- Certificate of income from work. If the applicant receives additional income, you can bring a certificate from the bank.
- Receipts, receipts, or other payment documents that will prove that the woman purchased certain items.
- If possible, it is advisable to obtain a certificate of income from your husband’s work. This way it will be clear what share of the total budget the common-law wife’s salary was.
- If a child was born in a civil union, then his birth certificate, where the deceased is indicated in the “father” column.
- Testimony from neighbors and acquaintances, work colleagues. They can be presented orally or in writing.
- Photo and video materials in which both spouses are present during those periods of time when they lived in a civil marriage.
Other evidence that may indicate the fact of an unregistered marriage in order to divide jointly acquired property.
Basic information
Civil marriage (cohabitation, de facto marriage) is a controversial phenomenon in modern Russian society. For some couples, this is a temporary step on the way to formalizing the marriage relationship: thanks to living together, their compatibility in everyday life, ability to get along with each other, etc. is tested.
Others, on principle, do not want to notify government authorities about their personal lives. This happens for many reasons - for example, the desire for freedom and the absence of any legal obligations to your common-law spouse. However, the absence of obligations also implies the fact that there are no legal or property rights either.
Problems begin after any serious situations and shocks - for example, after the death of a common-law husband. A woman’s chances of becoming an heir to her partner’s property, even if it was acquired with common financial resources, are minimal.
