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?
Property division rules
Marriage involves mutual responsibilities and rights. The list of the latter includes inheritance of an apartment after the death of a spouse. There may be several heirs. When there is a will, property is distributed according to the order specified in the document. Otherwise, an apartment acquired during marriage is divided according to eight lines of heirs. Property received by the deceased before marriage by gift or inheritance is also subject to re-registration.
In this case, documentary evidence of the degree of relationship is required. In the case of marriage, this is the corresponding certificate. Legislation in relation to parents, if they are disabled, as well as to minor children, provides benefits in the form of a mandatory share. But the main problem with all the claims is the impossibility of dividing the apartment in kind. The term itself means that everyone is allocated living space and there are separate entrances.
How to get out of the situation - payment of compensation
The allocation of obligatory shares to heirs by law often confuses all plans, causing difficulties in the question of what to do with the apartment. The impossibility of living together after marriage, the reluctance of the heir to share housing, and other reasons force one to look for a way out of the current situation. And he is. It is enough to pay the cash equivalent of the due share. This procedure has a number of features.
The cost of the apartment is assessed by independent experts. The obligatory share and the amount of compensation are determined in court according to the division of jointly acquired property in a marriage between heirs after the death of one of the spouses. The opposite option is possible, when the obligatory heir (himself or his guardians) agrees that he will pay compensation for part of the property and become the sole full owner of the apartment.
Arbitrage practice
A feature of these transactions is the acceptance of not only rights, but also obligations. Before marriage, each of the spouses owned property: for one, an apartment with furniture, for another, personal belongings, dishes, etc. But if the owner of the property dies, the heir, upon receiving it, assumes the responsibility to make payments, maintain the living space in proper condition, and pay off existing debts. It happens that a person understands that this step is not financially feasible.
The remaining heir remains to pay the amount (as agreed by the parties) and assume obligations. The heir pays money to the obligatory applicants in order to retain the apartment left by the testator upon inheritance. But there are cases when housing is not subject to division. There are exceptions to the general rules that need to be kept in mind.
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?
Son and daughter from first marriage
First of all, it is worth noting that the first wife cannot claim any part of the inheritance after the death of her ex-husband.
The exception is when she is dependent on her ex-husband, or the divorce process has not been completed.
That is, if they filed for divorce before the man’s death, but the documents were not signed and certified during this period, then they are not considered divorced.
If the deceased has children from his first marriage, then they can receive their shares of the inheritance on an equal basis with the children from the second marriage and the father’s second wife.
Example: a citizen has a son from his first marriage, a second young wife and a daughter from her. In the event of his death and if there is no testamentary document, all property will be distributed equally between these three people.
Important! Before dividing things, it is also necessary to allocate half of the property acquired during the marriage with the second wife. It will go to her as her personal property and will not be subject to division.
Those items that the deceased had before his second marriage, and also received by him as an inheritance or under a gift agreement at any time, will be distributed evenly among the heirs.
The same rules apply to illegitimate children , as well as those who were adopted during any marriage. They are equal in rights to relatives and can receive their legal part of their father’s inheritance, even if he was deprived of parental rights.
Read more about how the inheritance is divided between children here.
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
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.
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 the inheritance divided after the death of the husband (father)?
According to the property distribution queues, the following may inherit first:
- Children of a deceased person (including adopted children, illegitimate children, and from first marriages).
- His parents (including adoptive ones), if they are still alive.
- His wife (if they are officially married).
If there is a civil marriage, the wife of the deceased does not receive anything, since he has no obligations to her before the law. However, you can try to prove in court the existence of jointly acquired property.
To do this, you will need to provide relevant evidence : testimony of relatives, neighbors and other persons, documents for the purchased property and any other certificates and papers that will be the reason for allocating her own share.
Important! Also, in the process of accepting an inheritance, other people may appear who have the right to count on the obligatory share. These may be disabled people, dependents, minor children and disabled people.
If the deceased spouse or father left a will, then the heirs in the first place may not receive their share unless they prove the invalidity of this document.
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.
Instructions for entering into inheritance
After the death of the father or husband, heirs who wish to take possession of their share should follow the following steps in order:
- Contact a notary and notify him of the death of a relative. In this case, it is worth submitting the will, if it was discovered, and the death certificate of the citizen.
- Write a statement confirming the person’s desire to inherit.
- The notary will then conduct a small investigation to determine the rights of additional heirs, and, if any, send them notices by mail.
- Everyone wants to write an application to establish their rights to property. At the same time, they present various documents to confirm their identity, these rights and relationship with the deceased: certificates, certificates, passports.
- The notary verifies the data in the papers and establishes their authenticity.
- After which the shares are distributed in accordance with the law and the will and certificates of receipt of inheritance items are issued.
Read more about the list of documents for entering into an inheritance after the death of your mother here, and in this material read about how to enter into an inheritance after the death of your father.
So, if you know your rights and are able to defend them in court if necessary, the inheritance procedure will not require a significant expenditure of nerves from a person. It will go smoothly, painlessly and quite quickly.
