The apartment was purchased before marriage, who is the heir?

The husband dies. Typically, men marry at an older age than women, so they end up being several years older than their wives. Russian men live on average 67 years, while women traditionally live 10 years longer. So it is easier to consider the situation when the husband dies and the wife receives the inheritance.

Although the death of a family member can occur at an earlier age. The cause is usually either a serious illness, or an accident, or the commission of a crime, or the conduct of military operations. And sometimes a wife or husband goes to court to declare the missing spouse dead.

The loved one no longer exists, but during his lifetime he owned property. After death, his property should pass to his closest relatives by inheritance. However, this will require finding out exactly what property is subject to division between relatives. The testator could (if he wished) separate things and real estate from the common family property during his lifetime and register this separate property as personal ownership.

The concept of jointly acquired property

It is immediately necessary to make a reservation that further we will talk about legal marriage. Cases with a civil union where the relationship was not registered will be considered separately. The heirs claim jointly acquired property, which includes all material assets, money, apartment, personal belongings, as well as income:

Salaries received from official sources. The time from the date of marriage is assessed.
Profit from business, even if it is renting out an apartment. And if the heir to property acquired during marriage has not worked for a day, he is entitled to half of the amount received. It does not matter if the apartment being rented was purchased before marriage.
Income from the sale of intellectual work products. All royalties due to the author of a scientific work, piece of art, etc. shared during life with the heir.

When talking about material values, we mean everything that was acquired during the marriage. Real estate, transport, securities, shares in capital, shares and personal belongings pass to the heirs after the death of the husband.

Who is the heir after death if the apartment was purchased before marriage?

Home » Inheritance » registration of inheritance » Who is the heir after death if the apartment was purchased before marriage?

Inheriting property after the death of one of the spouses is a painful and sensitive topic. When spouses live together happily, such questions do not come to mind.

However, due to life and often tragic circumstances, we have to deal with such issues. Ambiguous controversial situations arise when it comes to inheriting property acquired by a deceased spouse before marriage.

Issues of receiving and registering an inheritance are regulated by the norms of family law (Articles: 33–38 of the RF IC), civil legislation (Articles: 256, 1118, 1119, 1141, 1142, 1149, 1150 of the RF Civil Code).

At the same time, in order to take into account all the nuances in such a complex matter as inheritance, it is necessary to navigate the notarial legislation and regulations of the Supreme Court on these issues (Resolution of May 29, 2012 No. 9).

Only a lawyer specializing in this field or an experienced notary can competently formalize the inheritance procedure, taking into account all controversial issues. However, you can also acquire general practical knowledge in the field of inheritance on your own.

Procedure for registration and deadline for accepting inheritance

If we are talking about a privatized apartment, then its inheritance is implemented in order:

The inheritance case is opened (the day of the spouse’s death). The deadlines provided for the execution are counted from the date of death of the testator.
The heirs write a statement of their consent to receive the property left by the deceased. The paper, prepared according to the law, is given to a notary whose office is located at the place of residence. This must be done within 6 months from the date of death of the relative.
Obtaining a certificate of inheritance of housing. The executed document is given by the notary after 6 months from the date of death of the spouse.

The spouse, children, parents, and dependents can carry out a number of actions to prove the fact of acceptance of the inheritance. For example, they live in an apartment, have a residence permit there, where the deceased also stayed, and pay for housing. That is, actions should be aimed at confirming the desire to maintain the property.

If the testator has written a will, then the notary must submit the following documents:

death certificate;
a set of certificates from the BTI (the list includes a document that records the cost of housing, a registration certificate for the property);
a copy of the will signed by a notary, you can also provide the original;
extract from Rosreestr.

It is necessary to prove the testator's right to the transferred housing using a will. It is necessary to provide documents and paper confirming the absence of debt.

During the process of inheritance, disputes may arise and in order to resolve them, it will be necessary to submit additional documents. The notary will warn you about them. The specialist himself can make a request to provide certificates to the relevant services. The heir will not only receive rights to the property, but he will be charged with the responsibility of maintaining it.

If there are debts to pay for housing, then the heir will have to resolve this monetary issue. All obligations to repay the debt will fall on his shoulders.

After solving material issues, a person can dispose of property at his own discretion. The owner has the right to write a refusal of the inheritance due to him. This option may be appropriate if the number of debts exceeds the property benefits. In some cases, you have to pay a state fee, which does not exceed 1% of the value of the property.

If a person lives in the apartment of the deceased, he is the first priority, then he actually accepted the inheritance. You can start registering your property rights at any time. But it is better to apply within 6 months after death.

In the case where there are several heirs, within six months from the date of opening the case, each of them can refuse the inheritance in favor of the others. After 6 months, this will no longer be possible.

In the case of transfer of property to inheritance under a will, most questions about its division are resolved on the basis of the text of the document. But even in this case, there are controversial situations - conflicts related to the division of property, unfortunately, are not uncommon. As for inheriting property by law, the division of such property often ends with the case being considered in court. And one of the most frequent disputes concerns the inheritance of property acquired before marriage.

Spousal share in joint property during inheritance

Children, spouses and parents are recognized as priority heirs, as established by the Civil Code of the Russian Federation. Accordingly, the surviving spouse receives part of the property jointly with the children and parents, and the shares are distributed equally. If a will has been drawn up, the amount of the inheritance can be changed at the request of the deceased person.

The inheritance that can go to the surviving spouse includes not only property that directly belonged to the deceased person, but also those objects that were recognized as community property (property acquired by the spouses during the marriage) and were divided equally between husband and wife.

Attention! The common ownership regime does not require establishing the fact who specifically bought the apartment, car or other property. The main thing is to purchase objects during the marriage relationship. The only exceptions are gifts, inheritances, winnings, and personal belongings of the spouse. But in case of inheritance, even the specified property can pass to the second spouse.

Practice knows situations in which one spouse proves that, for example, an apartment was purchased only with the personal funds of such a spouse, that, say, the wife did not financially participate in the purchase of real estate, and the money was earned by the man before marriage. The court may recognize such property as not the common, personal property of a specific person.

Accordingly, it is possible to accurately determine what is not common property: donated, inherited or won property, personal items (clothes, shoes, accessories), the authorship of a spouse as a result of creative work. Everything else will be divided between husband and wife in equal shares, but with inheritance this principle will not apply.

Marriage contract

This is a mutual voluntary agreement signed between spouses or future husband and wife. This document is also certified by a notary and the original is kept with him.

If it is necessary to make certain changes to it, this can only be done through a notary.

In a marriage agreement, spouses can provide for various property relations, as well as other obligations to each other.

This contract helps to avoid most controversial conflicts between spouses during their family life, as well as during divorce.

This agreement is often used when a spouse inherits expensive property, which he is forced to sell and purchase a new one with these funds.

The second spouse, according to the marriage agreement, refuses to claim the acquired property, or his share in this property is determined.

So, it turns out that new property was acquired during marriage, but it will be divided in the order that was provided for in the marriage agreement.

In addition, the agreement may provide for the division of all property in half, even that which was received by each spouse by inheritance or as a gift.

In this case, the division of property will be carried out in accordance with the drawn up agreement.

Who will get the apartment after the death of her husband?

In our country, it has developed that citizens do not like to write a will and few people during their lifetime think about what will happen to their property after their death. Recently, the attitude of citizens towards the institution of inheritance has been changing, but nevertheless, situations occur when one of the family members dies - for example, the head of the family and his relatives have a question - what will happen to the apartment, who has the right to live in it, and many others related issues. For example, who will get the apartment if the husband dies?

Important! If you are dealing with your own inheritance case, you should remember that:

Each case is unique and individual.
Understanding the basics of the law is useful, but does not guarantee results.
The possibility of a positive outcome depends on many factors.

Inheritance after the death of a wife to an apartment purchased by her before marriage

Now I’m thinking about the fact that in the event of my death, my husband will be the heir to what he did not earn, and I have a daughter, a son and two grandchildren. Moreover, in 2.5 years I’m retiring and we want to move to this apartment. And my daughter will move out of there. How can I make sure that only my daughter and son inherit and that nothing from this apartment goes to my husband? Can I leave a will for the entire apartment to my children or 50% will go to any husband. 2). I bought an apartment after being married for 2.5 years using my personal savings (including from the sale of a shared room purchased before marriage). Here I have a marriage contract stating that it is my personal property, and I can do anything with her without his consent. If I write a will for my daughter to own 100% of this apartment, will my husband be able to claim this apartment after my death?

Heirs of the first stage after death

When a person dies, he leaves an inheritance; who are the first-line heirs after the death of a relative? After death, the husband leaves his property to his wife and children, and parents leave their property to their children. They have a chance to inherit it by will, or, if they don’t have one, by law. The civil laws of the Russian Federation establish a system for the sequence of inheritance of the property of a deceased relative.

Disabled parents of the deceased.
The husband or wife of the deceased who, due to age or illness, has lost the ability to work.
Children who have not reached the age of eighteen, or who are unable to work due to illness, after the death of their mother or father, even if there is a will drawn up by their parents not in their favor, are obligatory heirs.
Persons who may even be distant relatives of the deceased person, in the case where they were in his support for at least one year before death. Being supported means that one or the main source of livelihood for these citizens was money (or products) provided to the deceased.

Example: a daughter, in the heat of a quarrel, inadvertently kills her mother - in this case, the daughter committed a crime against the testator, and as a result, representing the first-line successor, becomes the heir. But in accordance with the law, she is recognized as an unworthy successor and loses the right to receive her mother’s property.

For example, after the death of the husband and head of the family, the heirs who belong to the first order are his father, daughter and son, and wife, and the house becomes the inherited property. After the death of the husband, half of the house, as jointly acquired property, goes to the wife of the deceased husband, and the second half is divided into four, in this way the wife becomes the owner of five-eighths of the property of her husband, and the parent and two children each become the owner of one-eighth of the inheritance. If the father of the deceased renounces his share in the inherited estate in favor of his grandchildren, then his share is divided between them; the division of this share does not apply to the wife.

How is the heritage divided among the heirs of the first order? The husband or wife of the deceased person is the first heir. As the Family Code of the Russian Federation establishes, property that was jointly acquired during marriage is jointly acquired and is divided equally. Thus, after the death of a husband or wife, the jointly acquired property is divided into two equal parts, and one part goes entirely to the second spouse.

legal wife . Moreover, it does not matter how many years the spouses have been married, or whether she is currently able to work.
Children under 16 years of age , as well as those under 18 if they are undergoing training.
Relatives with disabilities from groups 1 to 3 .
Relatives of retirement age and disabled family members .
People who have been dependent on the deceased for more than a year.

legal wife (or husband) can claim the right to inheritance , since she comes first (find out more about whether spouses have the right to inherit if the other half has died, here).
Also, his children will receive part of the inheritance , and it does not matter whether they were born in marriage or not .
Children from a previous marriage and adopted children can also count on a share of the property of the deceased parent.
Parents of the deceased spouse.

Heirs by law are called to inherit in the order of priority provided for in Articles 1142 - 1145 and 1148 of this Code. The heirs of each subsequent order inherit if there are no heirs of previous orders, that is, if there are no heirs of previous orders, or none of them has the right to inherit, or all of them are excluded from inheritance (Article 1117), or deprived of inheritance (clause 1 of Article 1119), or none of them accepted the inheritance, or all of them refused the inheritance.
Heirs of the same line inherit in equal shares, with the exception of heirs inheriting by right of representation (Article 1146).

Housing not subject to division

Such cases include situations when real estate was obtained under special conditions, for example, when the deceased himself is the heir to the apartment. Property purchased before marriage or given as a gift can also be considered an exception. If we are talking about such cases, statements of intention to accept the apartment as an inheritance will not be issued. The same thing will happen if it turns out that there is a will and the actual heir is someone else. Now you will have to file a complaint and defend the mandatory share. But in other cases the situation is not so critical.

Inherited

This method of becoming an owner means that the property is not classified as jointly acquired during marriage. It turns out that there is nothing to divide. However, the legislation provides additional conditions for the heirs to take into account those who live in the apartment. During cohabitation, expenses related to the maintenance of property are allocated from the family budget, which belongs to both spouses on equal rights.

Also taken into account is who paid for the heir’s entry into rights and re-registration, and paid off debts. This situation may exist if the heir received an apartment while already married. In any case, the dominant document when dividing the property of a deceased person is a will. And according to the law, you can only transfer rights to your share. This means that in such an apartment the testator must be the only official owner.

Acquired before marriage

When everyone gets married, they bring property with them. The apartment for which the testator paid is not considered jointly acquired before the wedding. This suggests that such housing is not divided. But we are not talking about division during a divorce, when, according to family law, the bailiff service controls that the spouse and children of the testator become equal heirs.

If the primary heirs, as well as people who were previously married, have applied for a share in the inheritance, it is necessary to prepare. A death certificate is a must in the package of documents. But you will have to collect evidence of expenses for maintaining and repairing the apartment. And the property that is in it automatically goes to the wife (husband) and children.

Gifted

When an apartment is transferred on the basis of a deed of gift, it is not divided after the divorce. But when it comes to heirs, they have enough rights to claim the property. If there are several legal successors, the property is valued, and each receives a portion of these funds until the property is left with a single owner. This could be everyone living on the square meters at the time of the testator's death.

In the absence of a will, the situation looks as described. However, if the declaration of will is drawn up according to all the rules and notarized, what was acquired before marriage is inherited according to its terms. Persons who fall under the category of beneficiaries who have the right to inherit the obligatory share are allowed to challenge the document. This includes minor children, disabled parents, dependents who have been supported for more than a year before the death of the testator.

How is the inheritance divided after the death of a husband?

Today we will look at how property will be divided after the death of the husband. What is the wife's share and her right to inheritance after her husband's death? Joint property and inheritance Let's start from afar. According to Russian law, property of spouses that was acquired during marriage is common. The law classifies the following as jointly acquired property: Cash - salaries, pensions, scholarships, benefits, income from commercial activities received by spouses during marriage; Movable and immovable property acquired during marriage (apartments and houses, cars, land, furniture and household appliances...); Investments – shares in capital, bank deposits, shares, securities. Both spouses have equal rights to this property.

Basic principles

If the question arises whether an inheritance belongs to jointly acquired property, it is necessary to take into account all the nuances of obtaining and using this property.

According to the general rules of law, everything that was received by a spouse by inheritance applies only to his personal property.

In this case, the moment of receiving the inheritance does not matter. It could be received before the person entered into marriage, or after marriage. It also does not matter how the spouse entered into the inheritance.

There are 2 main ways to obtain rights to inherited property:

on the basis of law;
on the basis of a will left by a deceased relative.

These include the following circumstances:

When additional funds from the family budget are invested in this property, and they lead to a significant improvement in its condition, as well as an increase in the value of this property.
When the acceptance of an inheritance by will is provided not by one person, but by his family. Even conceived but unborn family members can be named in a will. In this case, according to the will of the testator, the second spouse may receive a certain share in the inherited property.
When the accepted inheritance becomes the partial or full property of the second spouse on the basis of a marriage contract concluded between them. Spouses can draw up such a contract at any period of their life together, as well as before marriage. But its effect begins only after the official registration of marriage.
When the inheritance of one of the spouses was sold and other property was purchased with these funds while the couple was in a family union. In this case, the new property will be considered joint property.
When the spouse who received the inheritance died and did not leave a will. According to the general rules of inheritance, the second spouse will claim all the personal property of the deceased on an equal basis with other participants in the first stage.

All these circumstances deserve individual consideration between spouses when determining jointly acquired property and its subsequent division.

Common property of spouses

If a dispute arises between spouses about whether an inheritance received during marriage is considered joint property, you must first turn to Article 34 of the Family Code. It is there that the full concept of what relates to joint property is given.

This includes the following:

the income of each family member, and this can be not only wages, dividends, business income, but also pensions, benefits and other amounts, even those that are compensatory in nature in the event of harm to one of the spouses;
movable and immovable things, shares, securities, deposits, etc., acquired at the expense of the family budget, regardless of to whom it is actually registered according to the documents.

USEFUL INFORMATION: Land surveying after January 1, 2020: cost, is it necessary?

At the same time, this article contains a separate clause, on the basis of which it is stated that this property is considered common, even if one of the spouses was unemployed during the marriage or cared for children.

But the most important thing is that all property is considered joint only if it was purchased using funds from the family budget. When receiving an inheritance, the purchased item is not paid for, it is provided free of charge

Therefore, inherited property is not considered common

When receiving an inheritance, the purchased item is not paid for, it is provided free of charge. Therefore, inherited property is not considered common.

Inheritance of an apartment purchased before marriage if there is a will

If there is a will of the deceased spouse, difficulties in the inheritance procedure usually do not arise. In his will, the deceased stipulated to whom he would prefer to leave property after his death, and in what amounts.

If the deceased spouse had minor children under 18 years of age, then they are entitled to a legally obligatory share, regardless of whether he indicated them in his will or not. The mandatory share is also provided for by law in relation to the parents of the spouse and disabled relatives who are dependent on him.

The amount of the obligatory part will be calculated based on the value of the unprobated property. And if there is no such property or if there is not enough property free from the claims of the heirs, then the estate specified in the will is taken into account.

Thus, in situations where a mandatory share is paid, heirs under a will must be prepared for the fact that they will have to give up part of their inheritance. The amount of the compulsory share of the heirs is determined by law - 50% of the inheritance that they would have received by law.

If the deceased spouse does not have such heirs, and in the will he assigned the apartment to his wife, then so be it, without any exceptions.

What cannot be divided

In the event of a divorce, part of the property may not be subject to division. This category includes property that, for one reason or another, in the event of division, will lose its functions. This also includes those types of property that cannot be recognized as jointly acquired property for the reason that the other half did not take part in their maintenance, improvement or repair. Among other options, it is worth noting copyright, which by law is not subject to division. It should be taken into account that although the rights themselves are not divided, the income received from their use is divided.

Division of part of the property

You cannot refuse part of your property so as not to divide it, and accept everything else. This is a mandatory rule provided by law. The heir has the right to refuse new property, but this will mean that he gives up everything that he could receive, and not a specific part. In fact, he has only two options: accept or not accept. The second option may be relevant in the case where a significant part of the inheritance consists of serious debts, the payments for which significantly exceed the potential value of the rest of the new property.

Inheritance of property acquired before marriage

However, it would be much more interesting for you to try to determine and recognize your share of ownership in property acquired before marriage, since this determines whether you will share with the heirs all the property or only the part belonging to the husband.

The inheritance after the death of the spouse is recognized as equal. That is, half of everything that the spouses have acquired is the personal property of the surviving spouse and cannot be included in the inheritance estate.

And the share that belonged to the deceased spouse should be divided among the heirs by will or by law. However, you must initially accept the inheritance after the death of your spouse.

To open an inheritance case, you should submit an application to the notary for acceptance of the inheritance at the place where it was opened and contact a civil lawyer.

Will the wife be able to get something through the court? If yes, then what exactly - a share in the apartments or only financial compensation for the funds acquired jointly (my salary) and invested in the apartments? What evidence does she have to present in court? An adopted child and his future offspring enter into inheritance as relatives.

An adopted child and his biological parents cannot be testators and heirs to each other. However, if the court decides, the child and the biological parents, if they have a relationship, can serve in these roles.

Successors of the previous line may be absent or not have the right of succession, may be excluded or deprived of the given inheritance, or may not accept the inheritance or refuse it.

Examples

Situation 1. Citizen S. lived with citizen O. without formalizing the relationship for 10 years, during which he purchased a house and a car, after which the union was officially registered. After his death, the claimants to the property were: his legal wife, daughter and son from his first marriage. Since citizen S. did not make a will, the inheritance was divided between the claimants in equal shares, 1/3 each.
Situation 2. How would the division occur in the above example if citizen S. and citizen O. had previously registered their relationship and the house and car were purchased after marriage? The spouse would have the right to allocate the marital share, that is, ½ of the jointly acquired property. The remaining part would be divided among all first-stage applicants according to the law. Thus, the shares of each of the heirs would be: spouses - 4/6, daughters and sons - 1/6 each.
Situation 3. If citizen S. had not registered a union with citizen O., then in the absence of a will allocating her a share of property, O. could not be among the applicants (except for cases where the right to an obligatory share of the inheritance applies).
Situation 4. If citizen S. made a will, then regardless of whether a marriage was concluded, the property will be distributed between the persons indicated in the document in the shares determined by the testator or equally.

Often, spouses do not even know what share of the property is due to them. Relatives of the deceased can be misleading by arguing that the wife has no rights to the values acquired by the husband. It is especially difficult to resolve issues if the marriage has not been formalized. Even a will drawn up unprofessionally, illiterately, does not guarantee the acquisition of valuables and can be challenged or declared void.

What to do in such situations? Enlist the support of specialists in the field of jurisprudence, namely, lawyers from the site ros-nasledstvo.ru. It is easy to get what you are entitled to by law if you know your rights and act on the basis of the law.

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How to divide an apartment taken on a mortgage before marriage during a divorce

If ownership of an apartment is registered in the name of a spouse before marriage, then the presence of children does not have any impact on its division. After a divorce, the apartment remains the property of the person to whom it was registered. However, a point should be noted regarding the residence of children. If, after the divorce of the parents, they move to housing that is inferior in parameters to this apartment, the court may make a decision on the possible residence of the children in the apartment purchased with a mortgage until they reach the age of majority. Accordingly, the spouse with whom the children remained after the divorce will also be allowed to live with them.

The apartment is recognized as the property of the spouse for whom the mortgage loan was issued.
Divide in equal shares 50/50.
The apartment will be divided in different shares, depending on the funds contributed by each spouse to pay off the debt and a number of other factors.

Along with the agreement, the notary is provided with title documents (passports of the parties), a certificate of marriage or dissolution of marriage, and title documents for residential real estate. Do not forget about the possible costs when concluding a voluntary agreement on the division of jointly acquired property. In accordance with the provisions of Article 333.24 of the Tax Code of the Russian Federation, it is 0.5% of the cost of the apartment. The minimum state duty is 400 rubles, and the maximum is 20 thousand rubles. You will also have to pay for the services of a notary office.

The claim is accompanied by the applicant’s passport, title documents for the property, information about an independent market assessment of the apartment, evidence of money spent on repairs or improvement of housing, a certificate of divorce or marriage if the spouses are not officially divorced. Speaking about the costs of the trial, it is worth noting that you will have to pay a state fee based on the provisions of Article 333.1 of the Tax Code of the Russian Federation. The maximum payment is 60 thousand rubles, and the minimum cannot be less than 400 rubles.

Art. 40 of the RF IC allows spouses to resolve a number of property issues without involving a court. For this purpose, you can conclude either an amicable separation agreement or a marriage contract. If spouses want to regulate the division of property purchased before marriage or not yet acquired at all, then the second option will be more correct for them, because The agreement allows for the division of only property recognized as jointly acquired property.

The RF IC determines that neither parents have rights to their children’s property, nor, accordingly, children have rights to their parents’ property. This means that the apartment purchased before marriage by the father or mother remains their personal property. The presence of children will not affect this fact in any way.

Sources

Leva Karapetyan History of the Russian state and law; Mir - Moscow, 1977. - 605 p.
Andreev, Nikolai Monument for verbal courts: monograph. / Nikolay Andreev. - Moscow: Mechanical Engineering, 1992. - 743 p.
Product quality control No. 7 2014; Standards and quality - M., 2014. - 645 p.
Citizen and Law No. 08/2011; Gostekhizdat - Moscow, 2011. - 510 p.
Alexander, Aleksandrovich Molchanov Civil law in diagrams. General and Special Parts / Alexander Alexandrovich Molchanov. - M.: Eksmo, 2011. - 740 p.