Divorce for a family is associated with a lot of difficulties. This, of course, is a certain emotional state, and, of course, everyday issues, for example, the division of property. The fact of uncertainty can also cause concern for past spouses - what property can everyone count on after a divorce? What he can claim in court is one of the frequent questions in this area. What happens to the inheritance of spouses in the event of a divorce obtained during their marriage?
On the one hand, many have heard that property acquired during marriage is divided equally, but is inheritance considered property? Or is it the property of the spouse to whom it was given? In order to dispel all the myths and rumors, I decided to prepare a thorough material on this topic, which is relevant for 2021. We will discuss in detail the different types of inheritance received, as well as mechanisms for resolving these situations.
Inheritance mechanism
First, let's figure out how property inheritance occurs. When a person dies, his property passes to his heirs. They can assume rights on the basis of a will or according to the order of family ties (Articles 1110–1114 of the Civil Code of the Russian Federation).
The estate includes real estate and other valuables owned by the deceased. It also includes his property rights and obligations.
Having entered into an inheritance, the new owner is obliged to register his right to it. Only after this will he become the real owner of real estate, intellectual rights and other valuables.
Art. 36 of the RF IC regulates the general order of ownership of inherited things. According to it, property that belonged to the husband or wife before marriage, as well as property received by inheritance before and after the conclusion of a family union, is not divided.
It turns out that based on this article, inherited things will not have to be divided. In this case, the method of entering into inheritance does not matter: by will or by law.
The joint property of the spouses is always subject to mandatory division. However, it happens that the inheritance will also be divided during a divorce. Now we will tell you when this happens using the example of a house that a husband inherited from his grandmother.
When the inheritance is divided between spouses
Despite the categorical definition of the property rights of spouses, there are exceptional situations in which one of the spouses has the right to a share in the inheritance of their partner. One of these aspects is prescribed in the Family Code of the Russian Federation. It states that if, after one of the spouses received an inheritance, the other took an active part in increasing the market value of the said property, the inheritance received during the marriage is divided upon divorce .
For example , if one of the spouses inherited an apartment, which the couple later repaired and furnished together, then the cost of the apartment will increase. And the other spouse will receive full rights to a share in this apartment after the divorce, since the property with the final market value will be considered joint property.
At the same time, if one of the spouses, while married, received an inheritance, which he then sold and solely used the proceeds, he can use it at his own discretion. And if, with the money received from the sale of the inheritance, he purchases other real estate, a car or other property, then he is the rightful owner.
Each individual case of divorce brings with it its own issues of division of property acquired during marriage. Therefore, it is necessary to be confident in your own rights to a particular share and, if necessary, defend your rights in court.
Video: What property is divided and not divided during a divorce.
Voluntary desire
The spouse who has become the owner of the house does not mind sharing it. This intention is documented, for example, in a marriage contract or agreement.
At the request of the husband, the house can not only be divided with his wife, but also the ownership can be re-registered in her name. This document must be certified by a notary.
“What if I changed my mind?” The contract can be changed or terminated by mutual consent of the husband and wife.
There is a second option for terminating a marriage contract - going to court.
Division of inheritance in case of divorce through court
Appealing to a judicial authority regarding the division of the received inheritance between spouses planning to dissolve the marriage union is the only option, since the husband and wife cannot agree on their own.
Procedure
To resolve the issue of inheritance during divorce proceedings through the court, you need to send a corresponding statement of claim. But you will also need to perform no less significant actions:
- Conduct an assessment of the inherited property over which a dispute has arisen between the spouses.
- When a statement of claim is drawn up, it must be sent to the judicial authority at the plaintiff’s place of residence or at the location of the disputed property.
- You must pay a state fee.
Next, you need to wait for the court’s decision and then act in accordance with the ruling. After all, thanks to the court it will be decided whether the inheritance received after marriage is divided in the event of a divorce.
Documents and statement of claim
As for documents, the main one is the statement of claim. In addition, you will also need to provide:
- A document confirming the identity of the plaintiff (passport of a Russian citizen).
- A receipt certifying the fact of payment of the state fee.
- Documentary evidence of ownership of the disputed property.
- Certificate confirming the death of the testator.
- A document that can certify family ties with the deceased testator.
You should also provide the court with evidence that can confirm the plaintiff’s right to the disputed property. These could be receipts for the purchase of building materials, audio and video recordings with relevant content. You can also attach written confirmation from witnesses.
Expenses
You need to understand that resolving the issue of disputed inherited property during a divorce also involves expenses. The main ones are:
- State duty in the amount of a fixed amount of 13,200 rubles for a property value of 1 million rubles. And 0.5% of the amount that exceeds 1 million rubles, but should not exceed 60,000 rubles.
- Payment for services for the assessment of disputed property.
- Accordingly, there may be costs if a lawyer was invited to help.
Therefore, you need to be prepared that you will have to spend money for the services provided if the issue is resolved in court.
Increase in property prices
Refers to a case where the value of an inherited house has increased significantly during the marriage. The point here is not a jump in prices on the real estate market: property has become much better in quality. An indispensable condition is that both spouses have contributed to improving the home.
This includes investments of joint or personal resources of the other half. This could be reconstruction, repairs or other activities in which the wife participated.
For example, a husband inherited a house in a dilapidated condition, there was no gas or water, and the site was not looked after. At that time, the property was valued at 3 million rubles.
During their marriage, the couple doubled the area of their house. They built a second floor, erected a bathhouse and a garage nearby, and made a major renovation of the building using joint finances. The wife personally took care of the garden near the house, planted apple trees and flowers, and did the landscaping.
As a result, over 6 years of marriage, the market value of the building increased to 5 million rubles. In this situation, the court recognizes the wife’s rights to division of property and will allocate her a share.
“But I don’t agree!” Then you will have to prove in court that all improvements to the property were made exclusively at your expense, and your spouse had nothing to do with them.
Voluntary division of inherited property
According to Art. 38 of the RF IC, spouses have the right to enter into an agreement on the division of property before, during or after divorce. The parties independently determine what property is included in the agreement.
The spouse who inherited real estate or other valuables has the right to transfer them to the other party by agreement. The origin of the transferred property does not matter in this case.
It is important to consider several factors:
- notarization of the agreement is required;
- without specifying a date, the contract comes into force at the moment of signing;
- the agreement does not indicate the property belonging to the children: it is not subject to division.
Purchase through sale of inheritance
The husband has a house inherited from his grandmother, and the wife inherited an apartment from her parents. A married couple decides to sell both premises and buy a mansion in the suburbs.
In this case, the purchased house will become jointly acquired property and will be divided in half during the divorce.
“I am against such a division! My home! Bring your arguments to the court, it will make the final decision.
If the spouses purchase a house without selling the wife’s apartment, she will not be able to claim it during a divorce. Then the husband should become the owner of the mansion, since the house was bought using the inheritance he received.
When partition is not possible in principle
In fact, if the inheritance was received during marriage, and the second spouse did not make any efforts to improve the property, and common money was not spent on it, then it is unlikely that it will be possible to divide the property.
In addition, care should be taken to ensure that all necessary documents regarding the inheritance are completed.
Otherwise, it is possible that the second spouse may challenge the fact of acceptance of the inheritance and raise the issue of dividing property in court.
Husband and wife are both heirs
There are cases when both spouses inherit. This happens after the death of a common child. If there is no will, by law the house will become the property in equal shares. This inheritance is considered personal property and is therefore not divided during a divorce.
If there is a will, the division may be different: more for one, less for another. Even a stranger has the right to dispose of the inheritance in favor of a married couple. Then both husband and wife will have rights to the house when dividing property. Shares are allocated to them in accordance with the will.
So, we have looked at exceptions to the generally accepted rule that an inherited house or apartment is not divided during a divorce. Knowing them, you can avoid misunderstandings when dividing property with your ex.
It should be noted that inherited copyrights, money, shares, deposits, as well as debts of the deceased during a divorce will not be divided in any case.
What inheritance is not subject to division?
Not all objects of inheritance can become the subject of a section. After a divorce, only one of the spouses will have the rights to:
- property that the couple did not take any action to improve the condition and value of;
- debts left by the testator;
- copyright.
These parts of the inheritance cannot be divided. If no one wants to win debt obligations in court on their own, then obtaining copyrights in itself is a big problem. It is also worth noting that if the inheritance received during marriage by law or by will was expressed in the form of securities, bank deposits or other monetary savings, then it cannot be divided between the spouses. The only exception is a voluntary agreement . Otherwise, even if during this time the financial investment received during the marriage generated passive income, only the legal heir will have rights to it.
Are there statutes of limitations?
We will proceed from the fact that the object of inheritance has all the signs of joint ownership of the spouses.
The legislation for its division provides a three-year limitation period. Its course begins from the moment when the second spouse became aware of the infringement of his rights.
Let's explain in more detail. The fact is that even after a divorce, joint property continues to remain so.
Consequently, its disposal must be carried out with the approval of the other spouse, even the former. And if this rule is neglected, the statute of limitations will begin to run for the purpose of dividing property.
The court is inevitable, what to do: step-by-step instructions
If the objects of the inheritance are nevertheless subject to division between the former spouses, then it is unlikely that it will be possible to do without lengthy legal battles. Therefore, it is worth thoroughly preparing for them.
Our instructions can help in this matter. Here are its main points.
How to prove
If one of the spouses claims to divide the inheritance, then he must confirm investments in the property at the expense of common family assets.
The following may be suitable for this purpose:
- Receipts for the purchase of goods.
- Acts for payment of repair work.
- Bank statements (if expenses were paid by bank transfer).
- Certificates of income and wages.
In general, everything that can confirm the improvement and increase in the value of the inherited property due to the joint income of the spouses.
What documents are needed
The claim must also be accompanied by a copy of the marriage certificate and its termination (if the division occurs after the official end of the divorce).
You will also need evidence of registration of inheritance for the house, documents for disputed property.
Property valuation
It must be done to determine the exact amount of the state duty for the upcoming appeal to the court.
It should be noted that the assessment of things is done at the current moment in time.
State duty
It must be paid as a certain percentage of the total value of the disputed assets. All necessary calculations should be made based on the rules of Article 333.19 of the national Tax Code.
If, simultaneously with the division of property, the issue of divorce is raised, an additional 600 rubles must be paid.
Cost of claim
It is indicated at the very beginning of the application and represents the value of the property that the plaintiff ultimately wants to obtain for himself.
Filing a claim in court
The choice of judicial institution largely depends on what is included in the disputed property. If the list contains real estate or land, then the statement of claim for division of property must be filed with the district court at their location.
In other cases, you need to contact the justice authority in the territory where the defendant (that is, the other spouse) lives.
Preparing a claim for division of property, including that inherited by a former spouse , can be quite a difficult task for many.
Therefore, it is advisable to seek the help of a lawyer (advocate) who specializes in divorce cases.
Participation in court and court decision
The plaintiff has the right to support his position before the court and the other party both independently and through his own representative. To do this, he needs to issue a notarized power of attorney.
After the court pronounces its decision, care should be taken to obtain its full printed text. To do this, it is better to submit a separate application to the court office.
Performance list
It is necessary for compulsory division of property. It is issued by the court of first instance after the month allotted for filing an appeal, or after the case has been considered by a higher court.
Further, bailiffs will help resolve issues with property.
How the inheritance was received
In fact, it does not matter at all how one of the couple received the inherited property:
- was it bequeathed to him or
- he was the heir of some order by law.
It will only be his personal property, received as a result of a gratuitous transaction. In its “pure form,” that is, immediately after entry into the rights of inheritance and registration of the inheritance received at the registration authority, the owner will be exclusively the heir-spouse. His “other half” will not have any rights to this inherited property. And there can be no exceptions here.
Arbitrage practice
When dividends from a business are divided, the value of the assets is factored into the calculation. Heirs of the first priority have undeniable priority if the divorce involves the division of the inheritance. Parts of the inheritance divided through the court are not subject to redistribution and remain with the divorced. The result of living together is property and money acquired by two family members. But these postulates are not the only ones that have been confirmed in judicial practice. Besides:
- Legislation protects the interests of all parties to the hearing and restores justice.
- When filing a claim against the other spouse, you will have to pay a state fee, which depends on the price of the claim.
- The application must be submitted at the place of residence or location of the disputed property.
- What was acquired by the spouses is considered to be what was purchased. The result of disinterested transactions is not such.
- A gift agreement is a document that does not allow the division of property after a divorce, as well as inheritance.
- Before signing the final document, you need to enlist the support of a lawyer.
- Cash deposits are also divided. If this is a deposit, the profit received during the deposit is divided, but this rule does not apply to situations where the deposit is received as an inheritance.
The plaintiff can be, for example, the husband. In any case, you need to divide into equal parts. And when there are children, one should not forget about their share. Until adulthood comes, the transferred object is at the personal disposal of the parent whose children are dependent on a court decision. You can initiate the process within three years after the dissolution of the marriage. In this case, property after divorce will be divided equally.
For any married couple, it is more profitable to reach mutual understanding in an amicable way, without litigation. This is why an agreement is concluded. Often people voluntarily decide to share an inheritance with their spouse after a divorce. In most cases, the decision is based on the fact that, for example, the house or apartment has been renovated. The cost of repair and construction work sometimes reaches 50% of the cost of the housing itself.
In this case, only the state duty is paid. The procedure will take about half an hour. It is enough to come to the notary, write an application and receive your copy of the agreement. Otherwise, the costs will be much higher. These are court costs, expenses for a lawyer, travel to meetings. Practice has shown that few cases are completed in one visit to the courtroom. If we are talking about an inheritance or a deed of gift, it is difficult to divide property as a result of a divorce. Initially, the legislation does not provide for such a mechanism.
The point is not that the inheritance is not divided after divorce without special reasons. Judicial practice proves that people often make mistakes already at the stage of drawing up statements. If this is a claim in which the plaintiff demands to divide the inheritance received before the divorce, it is necessary to indicate:
- date, place (city);
- document's name;
- name of the court;
- details of the plaintiff and defendant;
- grounds for appealing to a judge;
- description of the inheritance;
- instructions on how to divide;
- list of attached documents.
Attached are originals and copies of documents mentioned in the text. All of the above is documented. Moreover, the papers must have legal force. To do this, the documentation is checked according to the following characteristics:
- validity;
- presence of signatures of responsible persons;
- certification and original seals;
- reliability and compliance of information.
Any mistake made when drawing up the application becomes the reason that the inheritance is not divided during a divorce. The court will not accept the claim for consideration. The solution is to hire a lawyer who will defend the interests of the principal at all stages from the moment of filing the application until receiving a court order. And subsequently he will check that all the requirements of the court decision have been met.
Consulting and legal support
As we can see, dividing inherited property between former spouses is difficult, but possible. Before starting this whole long process, it is useful to talk with a lawyer. He will study the situation, documents and give his forecast regarding the real prospects of the case.
If necessary, a lawyer for inheritance and family disputes will draw up a statement of claim and represent the interests of one of the spouses in court hearings. At the same time, the specialist will operate not only with the norms of legislation, but also with the current judicial practice of the Supreme Court and other authorities.
A lawyer is also necessary when the case of division of property is already being considered in an appeal or cassation. After familiarizing yourself with all the materials, a specialist may have a completely different legal position on the essence of the dispute.
Author: Oleg Vladimirovich Roslyakov, source.
