Is inheritance divided in divorce? How is inheritance divided in a divorce? Inheritance and divorce proceedings: what is common

Many spouses who are going to dissolve the marriage are concerned about the question of whether the inheritance is divided during a divorce? According to the current family law, the spouses have the right to personal property.

Division of inherited property in a divorce

If one of the spouses acquired property as a result of privatization, donation or inheritance (i.e., free of charge), then it is not subject to division during the divorce proceedings. It does not matter when the said property appeared: before or after the registration of the marriage. It will remain in the sole possession of the one to whom it was originally intended.

This rule applies to all property, including a car, country houses, money and debts of the testator, etc.

As for the inheritance received in marriage, it absolutely does not matter the order of entry into the inheritance: by law or by will. This property was received as a result of a gratuitous transaction, which means that it is the personal property of the heir and the ex-spouse cannot claim it.

At the same time, the law admits that in some cases the second spouse has the right to claim inherited property. But this requires exceptional circumstances.

When is an inheritance subject to division in a divorce?

What are the exceptions to general rule on the indivisibility of inherited property? The answer to this question is contained in the Family Code. Article 37 contains an indication that if during the marriage the joint efforts of the wife and husband increase its value, then it is subject to division upon their divorce.

Let's give specific examples.

1. The husband inherited an apartment from his grandfather. Its estimated value at that time was 1 million rubles. The apartment was in a deplorable state and required repair. For these purposes, the couple saved money for several years, until, finally, they completed the finishing work. As a result, the cost of the apartment reached 2 million rubles. After investing money from family budget in real estate, it automatically becomes joint property and is subject to division upon divorce.
2. The wife inherited an abandoned plot. Living in marriage, the husband built a country house, a bathhouse, a gazebo there, helped his wife to plant vegetables and fruits. Since the spouse invested his own funds from the family budget in country cottage area and physical efforts to ennoble him, then he has the right to claim half of the plot.
3. The husband inherited a car and then sold it. The husband and wife spent part of the money immediately, the other was put aside in a bank account. They then purchased with the remaining funds Vacation home by adding a certain amount. In the event of a divorce, the country house will be divided in half, regardless of who will be the owner.

As for inherited monetary savings, the second spouse is not entitled to claim them. They will belong exclusively to the heir, even if the money was invested in various assets (stocks and bonds), were on a savings deposit, which allowed them to significantly increase in price over this period.

Division of inheritance by voluntary agreement

The law allows spouses to conclude an agreement on the voluntary division of property. In this document, they can prescribe the procedure for dividing property in a divorce. In this case, the property is divided at the discretion of the parties.

As a result, the inheritance received by them can be attributed to the personal property of the heir or even not having family ties with the deceased spouse, or divided between the parties.

This agreement does not require notarization, but many prefer to use the services of a notary so that the document is difficult to challenge in court.

In this case, the heir himself has the right to further challenge the agreement in court. In most cases, the court will be on his side.

In any situation, it is impossible to share the inherited intangible benefits (for example, patents or copyrights), as well as the debts remaining from the testator (but it is unlikely that the former spouse will claim such a legacy).

The spouse also has the right to transfer the inherited property in favor of the spouse. But in the future, he will be able to file a claim for the division of property after a divorce.

If both spouses are heirs

In life, there may be situations when both spouses inherit property at the same time. For example, they can become heirs by law in the event of the death of their children, or both of them were indicated in the will.

If they inherit property by law, then it is divided between them in equal shares. When inheriting by will this document must contain an indication of the share of each spouse.

After entering into inheritance rights, the share of each spouse will become their indivisible property and it will be assigned to them after the divorce. Those. they will retain the property they have inherited.

conclusions

Property inherited by one of the spouses is not subject to division upon divorce. The exception is cases where the value of the property was exaggerated due to the financial contribution or physical labor of the other spouse. In these situations, property will be divided upon divorce.

It is also possible to divide all property arbitrarily through an agreement between the spouses. At the same time, intangible assets and debts of the testator will not be subject to division.

In order to answer the question of whether the inheritance is divided during a divorce, it is necessary to familiarize yourself with the paragraphs of the codes of laws: Family (SK) and Civil Procedure (CPC) of the Russian Federation.

In the process of a legal divorce, all property that the spouses acquired or created jointly during the period family life divided in half between them. A special case- inheritance received by one of the former spouses during marriage. Such property can be divided only in exceptional cases.

Legal regime of inheritance in marriage

According to § 1110 and § 1114 of the Code of Civil Procedure, inheritance occurs after the death of a citizen, whose property is subject to division in a number of cases. The entry of heirs into the right to own this or that property is justified by the following factors:

• display by the testator of his will on the order of division and the list of heirs in a unilateral agreement - a will;
• relying on legislative grounds in the form of priority.

The regulation of relations between a married couple is described in § 13 of the UK.

Important! § 36 UK clearly reflects the legal basis for the distribution of inheritance in a divorce. Property received by means of a will in accordance with the current Code of Civil Procedure is the exclusive property of the citizen to whom it was assigned.

When is the partition made?

To date, there is one legal case when the inheritance can be divided between the spouses upon divorce. This exception to the rule is reflected in § 37 UK.

It contains information that if such property has become much better with the help of the joint efforts of the husband and wife, namely, its value has been increased several times, then in the event of a divorce it is subject to division.

Division of property

In the seventh and eighth chapters of the UK, several possibilities are provided for how the inheritance is divided during a divorce: peacefully and through legal proceedings.

Existence of an agreement

When concluding an agreement that reflects the division of property, the best solution would be to certify this fact with a notary.

Note! The inheritance is divided between the spouses upon divorce by concluding a peace agreement in accordance with the distribution of shares that they independently identified during the peace negotiations.

Download a sample agreement on the division of property

However, if subsequently the heir remains dissatisfied with such a transaction, he can always go to court to restore the rights to property.

Marriage contract

Based on § SK, when entering into marriage between persons registering their relationship in the face of the state, a special agreement can be drawn up - a marriage contract, the purpose of which is:

• determination of property rights;
• displaying the responsibilities of the spouses.

We are talking about the consideration of the operation of the clauses of the contract, both during the marriage, and the description of the procedure for its dissolution, indicating the reasons and instructions regarding the division of property.

Going to court

If the spouses cannot agree and conclude a peace agreement, then the inheritance will be divided upon divorce in accordance with the shares that will be determined by Judicial authority. Statement of claim on the division of property is filed with the court at the place of registration within the period prescribed by law.

Both are heirs

If the inheritance in question, which is divided upon divorce, imposes the same right of possession on each of the spouses, in this case upon dissolution of marital relations, each is assigned the share provided for by the Code of Civil Procedure.

An example of such cases is:

• death of children;
• designation of each spouse in the will.

Irina Kuznetsova, Chairman of the Bar Association "Kuznetsova and Partners" tells about what property is not subject to division during a divorce

Besperstova Alla Anatolievna

Assistant lawyer for inheritance cases: consultations, resolution of disputes and issues, registration of inheritance

Articles written

Even the most ideal couples from the point of view of those around them can get divorced. Without delving into the causes of divorce, it is worth paying attention to such an urgent issue as the division of common property. For example, most couples who are on the verge of divorce are concerned about the question of whether the inheritance received in marriage during a divorce is divided between both spouses?

It is well known that Russian legislation equates all property acquired by spouses in marriage to common property, subject to division in equal shares. It is quite another matter if we are talking on the division of property that has passed to one of the spouses by inheritance, or as a gift.

Based on Art. 33 of the Family Code of the Russian Federation, the property of the spouses, acquired by them during the existence of the marriage, is divided legally.

This section can be done:

• in the course of the spouses reaching a certain kind of agreement and division agreement;
• judicially.

According to Art. 38 of the RF IC, the court has the right to allocate separate shares of each of the spouses during the division, or divide all existing property into two equal parts (this takes into account the interests of minor family members, as well as incapacitated persons and dependents). At the same time, the question of whether the inheritance is divided upon divorce is still relevant.

If a marriage contract was drawn up before the marriage, then the property is divided in accordance with its main provisions.

When dividing property, special attention is paid to that part of it that was acquired before marriage, or fell into the personal use of one of the spouses after its conclusion.

What is inheritance and how is it divided?

An inheritance is property or a part of it received by one of the spouses for personal use in the course of the adoption of a will by him. In this case, the method of transferring ownership does not play a role.

She may be:

• received directly (the testator indicated one of the spouses in the will, making him the first and only claimant to the property);
• passed in order of priority (the new owner was the heir of the second or third order).

After that, only the person indicated in the will becomes the owner of the property. Neither his wife nor other family members have such a right. In this regard, the inherited property is not divided upon divorce.

Example: Citizen Samoilova Yu.V. died, leaving behind a will (she used the right of inheritance), in which she recognized her eldest son, citizen Samoilova K.Yu., as the sole heir and owner of her private house. wife and two children. After 5 years, the couple filed for divorce, while the wife of citizen Samoilov K. Yu. demanded to award her part of the house, on the basis of cohabitation with her husband at the time of receiving the inheritance. Having considered the case, the court refused to satisfy the claim, since there is documentary evidence that this disputed property is the sole property of the spouse (in this case, the husband).

This example is more the rule than the exception. judicial practice. However, there are precedents in which the inherited property was nevertheless divided between the spouses.

Possible exceptions

In Art. 37 of the RF IC contains an indication that allows us to say that inherited property can also be divided.

To the chagrin of the spouse who, by will, is its sole owner, the division occurs if:

1. The disputed property was greatly improved during the marriage. At the same time, its cost has increased significantly.

For example: Citizen Samoilov K. Yu., received from his mother a house in a rather dilapidated state, and made it overhaul using the funds of the general family budget. His wife took an active part in the repair (pasted wallpapers, whitewashed the walls, painted windows and doors), allocating her personal funds to put the house in order, among other things. If this fact is confirmed (surviving checks, testimonies), the property can be divided in accordance with generally accepted norms.

1. The inherited property was sold, the proceeds became the basis for the purchase of a new house, apartment, cottage.

Example: Citizen Samoilov K. Yu. did not live in the house he inherited. The property was sold, the funds received, together with the family's savings, made it possible to buy a new apartment and a car. In the process of divorce, they are divided between the spouses, based on the usual principles of legality. Each spouse receives an equal share in the property, regardless of in whose name the property rights were issued. In the event that an apartment and a car were bought exclusively with funds from the sale of inherited property, a citizen Samoilov K.Yu. is recognized as their sole owner. (his wife becomes a person temporarily using this housing, or living with its owner as a dependent).

The situations cited as an example are far from the only ones, but the most common ones.

Indivisible part of the inheritance

If after the divorce the spouses remained friends, then the disputed property inherited by one of them can be divided by agreement of the parties. The fact of the division is legally fixed by a notary, after which ex-husband and the wife is left with no claims to each other.

On a note

1. Copyright. The right of authorship to the created work belongs to the person to whom it was transferred, third parties have nothing to do with the use of such right for personal purposes.
2. Own, to which, during its ownership by the new owner, no noticeable improvements were applied. So, a house inherited, the existence of which the spouses remembered only during the divorce, remains to the one of them who is indicated in the will as an heir.

If both spouses are recognized as heirs, the property is divided between them in accordance with the instructions contained in the will (the right to a share).

Example: citizen Samoilov K. Yu. inherited 2/3 of the house, the remaining 1/3 of it was transferred to his wife and minor children. In a divorce, property is divided according to existing shares. In the event of disputes (the house has been improved), the spouses can go to court to re-allocate shares.

It is also impossible to inherit the debts of spouses who have passed to them from their next of kin.

So, the inheritance received in marriage is not divided during a divorce, the exception is its increase market value by attracting resources from the family budget and personal labor. Copyright and that property, in the improvement of which one of the spouses did not take part, are not subject to division.

An inheritance received by a husband or wife during marriage is, in most cases, impossible. The Family Code of the Russian Federation directly states that what was received free of charge by one of the parties family relations during marriage, it cannot be treated as jointly acquired property, as it is recognized as the personal property of such a person.

Inheritance is received free of charge, as well as gifts. Consequently, when dividing property, what was inherited must “depart” to the heir. In this case, the other party has no rights to the inheritance.

However, from this rule there are exceptions. Let's consider them.

Possibility of division of inheritance in case of divorce

The following exceptions are possible from the above rule, allowing the division of the inheritance between husband and wife.

1. What was inherited by one side happens qualitatively improved through the application of personal efforts by the other party. For example, a husband may renovate or build on a private house inherited by the wife, while the wife may renovate land plot to which her husband is the heir. In both cases, there will be an increase in the value of the inherited thing, which may become the basis for the court to recognize it as the common property of the spouses, followed by division into equal shares. If the dispute is resolved by the parties themselves by reaching an agreement, then the division can be carried out in any proportion.
2. Sometimes Both spouses are heirs. They can be called to inherit jointly (for example, by will) or independently, being among other successors (for example, inheriting from children). In this case, each of the parties inherits its share, attributable to their personal property.