How is jointly acquired property inherited after the death of one of the spouses?

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During the life of spouses together, various types of legal relationships occur, property is acquired and alienated, and other transactions occur. Few people think about how the inheritance will be divided in the event of the death of one of them, especially while everyone is healthy.

The Civil Code gives rights to an impressive list of successors. Inheritance is regulated by a number of other acts (Resolution of the Plenum of the Supreme Court, fundamentals of legislation on notaries and others). The topic is broad and has many nuances and directions.

The procedure for dividing joint property after the death of one of the spouses

Before registering the relationship, each of the “newlyweds” may own expensive property, such as real estate, a car or jewelry. After marriage, all purchases and savings acquire legal status - jointly acquired property. An exception will be the presence of a marriage contract or agreement.

The process occurs depending on the reasons:

• is there a will;
• its status (joint or individual);
• whether the marital share was allocated;
• whether a marriage contract has been drawn up (can only be declared invalid in court);
• whether the spouse is entitled to a mandatory share.

All property acquired during marriage is considered community property. The remainder is entitled to a spousal share of 50% of it. The second half constitutes the inheritance mass, which is divided within one line “according to the law” in equal shares. Since the widow (widower) belongs to the heirs of the first priority, she has the right to a part of the inheritance mass.

The hereditary mass includes:

• property that is considered personal;
• everyone's share in joint property;
• individual debt obligations;
• share of total debts.

The right to inheritance of one of the spouses has:

• widow (widower);
• children are natural as well as adopted;
• parents who have not been deprived of parental rights;
• dependents in case of their incapacity;
• individuals and legal entities specified in the “last will” of the deceased.

Composition of heirs

The division of property after the death of one of the spouses can be determined by law or by will. The testator has the right to independently determine who will receive his property. In this case, he draws up a notarized order - a will. If there is no such document, the property of the deceased will be divided equally between the heirs according to the law, with the obligatory allocation of shares to those who were dependent on the deceased for at least a year before his death.

Inheritance queues

The Civil Code of the Russian Federation defines seven lines of inheritance according to the law:

• first - children, parents, surviving spouse;
• the second - brothers and sisters, grandparents;
• the third - brothers and sisters of the parents of the deceased (i.e. uncles and aunts);
• fourth - great-grandparents;
• fifth - cousins' granddaughters and grandsons, great-aunts and grandfathers;
• sixth - cousins, great-granddaughters and great-grandchildren, cousins, nieces and nephews, cousins, uncles and aunts;
• seventh - adopted children, stepmother, stepfather.

The grandchildren of the deceased receive the right to a share in the inheritance by right of representation. For example, the son or daughter of the testator died at the same time as him or before the opening of the inheritance. Then their children will take their place in line.

In law

Regulated by Chapter 63 of the Civil Code of the Russian Federation. The inheritance is distributed in accordance with the order, which contains eight points.

First priority successors have priority rights:

• wife (husband), with a registered marriage;
• children premarital, common, illegitimate, adopted;
• parents of the deceased spouse.

Disabled dependents can be divided into two groups:

1. a relative who was supported by the deceased person for at least a year, regardless of place of residence.
2. persons not related by blood to the deceased, but living with him for the same period.

People are recognized as dependents in court. The potential heir himself or through a representative must file a corresponding claim for assignment of such status.

What to do with children when dividing property?

Children, along with parents and spouses, are among the primary heirs. They have the right to claim an equal share with the specified relatives, unless the deceased ordered otherwise in the will.

It is important that the child is born from parents who have entered into a legal marriage. But even in the absence of a legal marriage, the mother’s property belongs to the children, along with other heirs.

In order to inherit paternal property in this situation, it will be necessary to additionally prove the fact of paternity, if this was not previously confirmed by the deceased voluntarily. To do this, a biological examination should be carried out.

It must be taken into account that some categories of heirs, by law, claim to receive a mandatory share. This condition applies to the following persons:

• disabled, underage or adopted children of the deceased;
• disabled mother, father or wife of the deceased (in case of disability or reaching the age of sixty for men, fifty-five years for women);
• disabled dependents who were supported by the deceased, without whose material support, which was the main means of subsistence, they could not provide for themselves.

The size of such a share is determined regardless of the existence and contents of a will. It is at least fifty percent of what they would be entitled to by law.

Divided by will

Every capable citizen has the right to formalize his will in the form of a will. The decision is made personally and does not depend on the wishes of other persons; there is no need to notify them about this. After death, a person can generally deprive all relatives of his property and leave it to strangers. The exception is the category of citizens who are entitled to a mandatory share.

You can bequeath property:

• individuals;
• legal entities;
• to the state.

What to do if the place of last residence of the deceased is unknown?

If the deceased permanently lived outside of Russia, or his location was unknown (as in the case of a missing person), then the place where the inheritance is opened will be the place where the citizen’s property is located . Moreover, division of property after death is possible only if all possible heirs are present. If one of the heirs is absent, then the notary is obliged to notify him by registered letter about the beginning of the opening of the inheritance case.

It is noteworthy that if the deceased’s property is located in different parts of the country, then the inheritance should be opened where the most valuable property is located.
For example, if a person had an apartment in one city and a small plot of land in another, then the determination of the most valuable of them is clarified by conducting a market assessment of the value of the property. If an apartment in the city is valued higher than the cost of the land plot, then the inheritance will be opened at the location of the apartment. Please note: The market value is taken into account at the time of the owner’s death, that is, at the time of opening of the inheritance and nothing else.

By joint will

Recently (since 2021, Article 1118 of the Civil Code of the Russian Federation), married citizens have the opportunity to jointly draw up a will. Spouses decide on the fate of their property in the event of the common death or one of them. Both jointly and individually. This allows the husband or wife not to worry about identifying other applicants and to enjoy the property for life. In this case, the norms of the obligatory share (Article 1149 of the Civil Code of the Russian Federation) are also applied, which is allocated from the inheritance mass in accordance with the status of the applicant.

Who opens the inheritance?

Opening an inheritance is the responsibility of a notary. Heirs or presumptive heirs must apply with a document on the death of a citizen to a notary who is located at the last place of residence of the deceased or at the location of his property.

Heirs cannot turn to different notaries to open an inheritance, since the law provides for an immutable rule - only one notary can conduct one inheritance case . Therefore, if the property of the deceased is not located at the place of his last residence, then the intended heirs can choose which specialist to contact. Read here which notary to contact to register an inheritance.

Mandatory share

A wife can make a will in which she does not name her husband as an heir. However, the law defines situations when he will receive his share in any case, since he belongs to the category that is entitled to a mandatory share.

For example, a husband is vested with such a right in ½ part of the due inheritance “by law” when he:

• disabled person;
• was fully dependent on his wife for a year;
• has reached retirement age.

If in the will the wife did not indicate the size of the obligatory share or determined it to be less than the required share, then the spouse has the right to challenge such a will in court.

Skipping the statute of limitations for division of property

There are situations when division of property is required after the statute of limitations has passed. Such circumstances are also not hopeless. If there is a significant reason, you can file a lawsuit in order to restore the statute of limitations, and only after that begin the main procedure.

Serious reasons for reinstating the deadline for dividing the common property of spouses may be:

• the plaintiff himself was ill or one of his relatives was ill;
• business trips;
• illiteracy or ignorance of Russian.

If the terms are seriously overdue, it will be almost impossible to file a claim against the joint home unless they are reinstated.

Marital share

Regulated by the Family Code of the Russian Federation. In accordance with the law, common property includes any material receipts of each spouse, movable and immovable property, securities and deposits, and others, regardless of whose name it was registered in and by whom it was paid. The key is to acquire the benefits of marriage. At the same time, a husband or wife who does not have an independent income, for example, while on parental leave, is not limited in this right.

The marital share will be half of the above-mentioned marital property. To allocate it, you must pay a state fee within six months, fill out a corresponding application with a notary, and pick up a certificate of allocation of such a share.

Important ! If the six-month deadline for filing an application with a notary is violated, all the property of the deceased will be included in the general inheritance mass, and the marital share will have to be restored in court.

The procedure for dividing joint property voluntarily or through the court

The division of property for spouses whose divorce has taken place is carried out practically according to the same scheme as for couples who are just divorcing. Of course, there are changes, but they are minor. In particular, the problem can be solved not only in court, but also peacefully.

If you want to divide property voluntarily, you should draw up a settlement agreement. Samples of such an agreement can be found on the Internet, and there are no clear instructions for writing this document. But there are principles from which you should build when drawing up a document:

• the terms of the sample agreement must comply with current legislation;
• within the framework of the agreement, the rights of interested parties (for example, children) must not be violated;
• all conditions must be feasible without ambiguous interpretations.

Interestingly, an agreement on the division of property between spouses after a divorce allows you to divide everything not only in equal shares. The share can be significantly larger or smaller - if both parties to the agreement agree to this, there will be no problems. If there is no agreement, the document can be declared illegal in court. It is important that the agreement lists and describes all divisible property in as much detail as possible. After preparation, the document samples must be registered with a notary.

It is not always possible to divide property peacefully. Then you should go to court by filing a claim. In order for the claim to be accepted, you will have to pay a state fee. But the procedure is carried out taking into account the equality of the share for everyone.

The division of marital property in court can take place according to the following scenarios:

• the court will establish rules for ownership of common property;
• things that the spouses managed to acquire are sold, and the money is divided;
• if the spouses were able to acquire indivisible property, it remains with one of the owners, who will have to pay compensation to the second for its part.

When it is necessary to divide monetary assets, the easiest way is to divide them in half. The apartment and other property are usually sold to obtain money or compensation is paid to one of the owners.

Common-law wife (cohabitant)

Has the right to the property of a deceased man only if the property belongs to him personally.

Legally, the cohabitants did not legalize their relationship and only actually lived together, running a common household. When one dies, the survivor can claim the inheritance of the second if recognized as a dependent in court. When drawing up a will, the rights of the cohabitant are protected in accordance with the law and, if properly executed, are not disputed by other successors.

What documents are required when contacting a notary to open an inheritance?

To begin the procedure for registering an inheritance, relatives or persons who consider themselves heirs must contact a notary with the following documents:

• death certificate of a person whose property is subject to inheritance;
• documents confirming family ties with the deceased;
• documents confirming the place of last residence of the deceased;
• a will or a copy thereof, if available;
• document proving the identity of the person applying.

Documents that confirm family ties may include:

• Marriage certificate;
• birth certificate;
• a copy of the court decision appointing the deceased as the adoptive parent of the person who applied.

A marriage certificate establishes the rights of the person who inherits property after the death of a spouse, namely the second spouse. If the official marriage has not been registered, then the relationship between the couple cannot be considered related, and the person cannot be an heir of the first category.

Documents that confirm the place of last residence of the deceased may include extracts from house books, a certificate of registration at the place of stay or residence.