How is property divided after the death of one of the spouses?

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.

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.

Rights of the surviving spouse

The surviving spouse inherits property upon the death of the spouse as part of the first-degree heirs. Moreover, his share will not be half, as many people think, but the same part as the other heirs in his turn.

For example, after the death of a citizen, his son, daughter, mother and wife became the first-line heirs. The share of each of them will be 25%.

The personal property of the surviving spouse will not be considered inheritable. The law includes:

property owned by the surviving spouse before marriage;
personal items;
copyright;
property received as a gift;
property received as an inheritance.

Property acquired during marriage - real estate, vehicles, deposits and bank accounts, luxury goods, spouse's income, securities, copyrights, etc. - is included in the inheritance estate.

Ex-spouse

In the event of divorce, the former spouse ceases to be a close relative and has no right to count on an inheritance. However, there are two exceptions to this rule:

the former spouse is included in the will by the testator himself;
the former spouse was dependent on the deceased for at least a year and in this case has the right to an obligatory share in the inheritance - at least 50% of the share that he would have received if he had been an heir by law.

If the spouses began divorce proceedings, but the court decision did not have time to enter into legal force before the death of the testator, the spouse will not be considered former and will receive his share of the property as a first-priority heir.

Mandatory share

Art. 1149 of the Civil Code of the Russian Federation secures the right to an obligatory share in the inheritance, regardless of the contents of the will, to the following categories of citizens:

children under 18 years of age and disabled children (for example, disabled people of group I);
disabled spouses;
disabled parents of the deceased.

Children, parents and spouses of the testator who are classified as pre-retirees also have the right to a compulsory share, even if they have a permanent earned income.

If there is a marriage contract

A prenuptial agreement is a lifetime document and terminates after the death of one of the spouses. It is impossible to include clauses on the fate of inherited property in the marriage contract, otherwise in this part it will be declared invalid.

If the deceased did not leave a will, the rights of the surviving spouse will be governed by the rules of civil law on intestate succession.

In a civil marriage situation

To begin with, let us clarify that for Russian legislation, a civil marriage is considered to be one that is registered with the civil registry office. A man and a woman who lead a joint household and consider themselves a family, but whose relationship has not been formalized in an established manner, are considered cohabitants. This form of family does not give rise to legal rights and obligations, and cohabitants are not spouses before the law. Therefore, the Civil Code of the Russian Federation does not grant them the right of inheritance. The only situation when such a person has the right to an obligatory share in the inheritance is if he is a dependent of the deceased for at least a year before the death of the latter, if there are no heirs of 1-7 orders.

Thus, only spouses who were officially married can claim division of property after the death of their husband (wife) .

Children's rights

The children of a deceased citizen are first-degree heirs along with the surviving spouse and parents of the testator. Regardless of whether they lived with the deceased parent or not. For example, the marriage between the spouses was dissolved, the child lived with his mother, who had remarried. After the death of his own father, he has the right to inheritance.

Even if there is a will in favor of other persons, the child has the right to a mandatory share if he has not reached the age of majority or is disabled.

In the event that a deceased parent was deprived of parental rights in relation to a child, this child still has the right to inherit by law as part of the first line of heirs.

If there is a dash in the “Father” column on the child’s birth certificate, it is necessary to go through the procedure of establishing paternity. This can be done through the registry office (if the father is alive and ready to recognize the child) or through the court in other cases.

Proof of paternity can be:

results of genetic testing (after the death of the father, biological samples are provided by his close relatives);
photo and video materials confirming the fact of paternity;
testimony of witnesses (neighbors, relatives, co-workers, etc.);
correspondence containing the citizen’s recognition of the fact of paternity;
other evidence.

Dependents and disabled people

This issue is regulated by Art. 1148 of the Civil Code of the Russian Federation. Citizens who are not among the heirs of the queue that is called to open the inheritance, but who were in the care (support, dependent) of the deceased for at least 12 months before his death, have the right to a share in the inheritance on an equal basis with those on the queue.

As for disabled citizens, only spouses, children and parents claim to inherit. Since 2001, the law also includes pre-retirement people (spouses, children, parents) as disabled people.

Terms of inheritance

The law establishes a time frame for accepting an inheritance (Article 1154 of the Civil Code of the Russian Federation). According to general provisions, the procedure must be carried out within 6 months from the date of opening the inheritance case, i.e. the moment of the citizen's death. After declaring a person dead, the day of opening of the inheritance is the date of entry into force of the corresponding court decision, according to which the person was declared dead.

When the right of inheritance for others arises in the event of the refusal of the main successor or his recognition as unworthy, such persons have the right to formalize an inheritance within 6 months from the moment such a right arises.

Persons who have received inheritance rights due to non-acceptance of property by another applicant can carry out the procedure within 3 months from the end of the total 6-month period.

The countdown for accepting the inheritance will begin on the next day following the date on the calendar when the heirs acquired their right. The day after the opening of the inheritance case or after the court decision enters into legal force, the tomorrow after the death of the testator (Article 264 of the Code of Civil Procedure of the Russian Federation).

If you miss the appointed time, you can restore it through the court by filing an appropriate application. If the plaintiff has compelling reasons. For example, you learned late about your right to claim your spouse’s property, you were ill, or you were on a long business trip. This must be confirmed by attaching special documents.

What is included in the hereditary mass

You can inherit property that does not relate to the personal rights and responsibilities of a citizen:

real estate;
vehicles;
bank accounts and deposits;
securities;
jewelry;
luxuries;
copyright;
furniture and household appliances;
personal belongings of the testator.

Debts to third parties or financial institutions are also part of the inheritance. Therefore, the heirs are obliged, when entering into inheritance rights, to accept them too, with all the ensuing legal consequences.

Personal property

Personal property includes everything that the deceased used during his lifetime. These include household items, wardrobe, jewelry, art, and household appliances.

Moreover, if the testator was legally married, then the heirs can only claim ½ of the personal property of the deceased. Since the second half legally belongs to the surviving spouse.

Joint property

Such property includes everything that was acquired by the spouses during the marriage:

real estate;
labor income, as well as income from entrepreneurial or intellectual activities;
pensions and benefits paid until death;
amounts received under insurance contracts;
securities and other financial assets;
means of transport;
things (furniture, appliances, household items, luxury items and collectibles).

It does not matter in the name of which spouse the property is registered, it will in any case be considered jointly acquired. The inheritance of jointly acquired property is distributed as follows: 50% to the surviving spouse, the remaining 50% to the first-degree heirs.

Recommendations that will help

In conclusion, I would like to note a number of points that it is advisable to take into account in such situations. It is better to prevent possible negative consequences than to correct them later.

First of all, it is necessary:

Determine whether a will was written by the deceased.
If most of the things were acquired by the wife, and the husband has children from a previous relationship, a will should be written.
When the parties are in an unequal financial situation, it is best to conclude a marriage contract.
Do not enter into conflict throughout your family life with children from your first marriage, but rather show them attention and friendliness.
First of all, the person (spouse) who lived with the deceased and used them will claim household items, furniture, and equipment.

Everything needs to be resolved through negotiations, including emerging issues related to the division of inheritance. You need to demand only what belongs by law.

Author: Oleg Vladimirovich Roslyakov, source.

How is the inheritance distributed?

The inheritance can be divided by agreement between the heirs or in court.

When inheriting by law

If the heirs of the first priority are called to open the inheritance, they have the right to an equal share in the property. For example, after the death of a citizen, the first priority heirs were a spouse, two children and two parents. Then the entire inheritance mass will be divided into 5 equal shares according to the number of heirs.

If a relative by right of representation becomes a first-degree heir, he is entitled to only ½ of the share that his predecessor would have received. For example, after the death of a citizen, his spouse, parents and grandson became his heirs, because the son, who is the father of the grandson, died before the opening of the inheritance. In this case, the grandson will receive not ¼ share of the inheritance, but half of this share.

The surviving spouse has the right to ½ of the personal property acquired by the spouses during legal marriage.

For example, a couple has an apartment worth 1,000,000 rubles. After the death of one of them, the second is entitled to his half (½ share) and to a share in the remaining half.

If there is a will

The testator has the right to independently determine the person or persons to whom he will bequeath his property. In this case, the presence of family ties between the testator and the heirs does not matter. Property can also be bequeathed to legal entities (enterprises, institutions).

The testator also has the right, during his lifetime, to determine the shares of each heir or to indicate to whom what specific property will be transferred after his death. For example, an apartment for a son, a country house for a daughter, bank deposits for a mother.

Regardless of in whose favor the will is drawn up, the law protects the interests of certain categories of heirs. The mandatory share will be allocated to dependents, minor children and disabled spouses and parents.

Possible conflicts with children from a first marriage

The relationship between children and the father's real wife is often characterized as hostile. Therefore, you should expect surprises.

This may be an untimely notification of the death of the father to the children, an attempt to independently appropriate the things of the deceased (books, clothes, equipment) that do not require a written or notarized agreement on the division of inherited property.

Attempts to divide the inheritance mass without the participation of children cannot be ruled out. Let's give a couple of life situations.

Example No. 1. Savings in marriage

After his death, the man was left with a two-room apartment, a garage and 2 million rubles in the bank. Among the heirs were his wife and two children from a previous marriage. The apartment and garage were purchased by a citizen until his last marriage.

The funds were recognized as assets, and the wife received her share in the amount of 1 million rubles according to the law. Everything else was divided in three equal parts between the wife and two children.

Example No. 2. Division of property between wife and children from first marriage

After the death of the husband, his retired wife and son and daughter from a previous marriage remained alive. The inheritance consisted of an apartment, a dacha, a car, and a deposit in the amount of 1 million rubles.

The only common family property was a car. In this situation, the wife teaches 50% of the car as an obligatory part. Everything else is divided between her and the children in three equal shares.

Design rules

Notaries are involved in registering inheritance rights. They open an inheritance case at the request of applicants for the inheritance and register it in a unified register. This ensures that more than one case will not be opened regarding the same inheritance. If, during registration, it turns out that the inheritance case has already been opened by another notary, the application will be attached to him.

Where to go

To complete the formalities, the heirs turn to the notary at the place of residence of the deceased - the place where the inheritance was opened.

Package of documents

The heir applies to the notary with an application to open the inheritance and attaches the following documents to it:

original death certificate;
a will (if any) with a notary’s note that it has not been changed or revoked;
inheritance agreement (if any);
documents certifying family ties (marriage, birth, adoption, etc.);
a certificate of the testator’s last place of residence;
an extract from the house register about deregistration at the place of residence;
a copy of the financial and personal account from the last place of residence of the testator.

Based on the submitted documents, the notary opens an inheritance case. He will also issue a certificate of right to inheritance.

State duty and deadlines

Registration of the right to inheritance requires payment of a state fee in the amount of:

0.3% of the value of inherited property for close relatives (children, spouses, parents, full brothers and sisters), but not more than 100,000 rubles;
0.6% - for all other heirs, but not more than 1,000,000 rubles.

We wrote more about the state duty here.

Certain categories of federal beneficiaries, heirs living in houses and apartments that are part of the inheritance mass, do not pay the state duty. In addition, heirs of persons who died in the line of duty are exempt from paying the duty.

How to challenge the division of property after the death of one of the spouses

An inheritance by will or by law can be challenged in a court of general jurisdiction. A statement of claim must be filed with the court of first instance only if there are legal grounds for reviewing the inheritance case:

circumstances that became known after the distribution of the inheritance and are significant;
missing the six-month deadline for presenting the right to inheritance;
disagreement with the definition of shares;
inclusion of the personal property of the surviving spouse in the estate;
discovery of facts indicating that the heir contributed to the death of the testator;
other legally significant circumstances.

It is very difficult to challenge the last will of a deceased person expressed in a will. Here the law will be entirely on the side of the heirs specified in the document and persons claiming an obligatory share in the inheritance.

Actions after receiving a certificate of inheritance

First of all, entering into a wife's inheritance after the death of a spouse requires receiving a certificate certifying the spouse's rights to real estate. It will indicate which properties the wife receives from her deceased husband.

After which you should take care to re-register some properties in your name. We are talking, first of all, about real estate, land or transport (not necessarily automobile).

If you have received deposits, then the bank, after receiving a certificate of inheritance, will give the money to your spouse.

The wife may also receive the husband's share in the authorized capital of the enterprise. And here you also need to take care of compliance with all necessary corporate formalities.

Each situation with inherited property is individual. And you can choose the optimal course of action after consulting with a lawyer.