Marriage agreement after the death of one of the spouses - consequences, inheritance, contestation and nuances

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The husband and wife can independently determine the fate of jointly acquired property. For this purpose, a marriage contract is drawn up. Typically, a marital contract is drawn up in case of divorce. The document prescribes the resolution of controversial issues. Additionally, with the help of a prenuptial agreement, the property of the husband and wife can be distributed in advance. However, in practice, one of the spouses who entered into a contract may die. In this situation, inheritance laws come into force. It is not entirely clear whether a prenuptial agreement continues to apply after death. To understand the current situation, it is necessary to study the issue in detail and become familiar with the legislation regulating the problem.

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Is a prenuptial agreement valid after the death of one of the spouses?

The question of the validity of a marriage contract after the death of a spouse causes conflicts. Moreover, a double opinion arose not only between ordinary people, but also among the courts. The opinions of authorities often differ. The situation arose due to a double understanding of Chapter 8 of the RF IC, which regulates the procedure, validity and cancellation of a marital agreement between husband and wife. The legal act does not contain clear regulations regarding the legal status of the marriage contract in the event of the death of one of the spouses. Article 43 of the RF IC states that the contract terminates if the marriage is dissolved.

In simple terms, a prenuptial agreement is the disposition of property in the event of divorce. The contract reflects what property the husband and wife will receive upon termination of the official relationship. After the death of one of the spouses, the marriage is automatically annulled. This also serves as the basis for terminating the marriage contract after death. But if the contract provided for the distribution of property between husband and wife during family legal relations, this property will not fall into the inheritance mass. According to the marriage contract, after death, the property will belong to the spouse to whom it was intended according to the document.

Right to inheritance in the presence of a contract

When a marriage contract is concluded between spouses, inheritance occurs in accordance with the compromise that the parties reached when signing it. The rules of civil law regarding the receipt of inheritance by law and by will also apply.

Inheritance of the property of a deceased person by will

If a party to a contract wishes to leave any property to his spouse upon death, he must make a will.

The provision on inheritance at the will of a specific person cannot be indicated in the text of the marriage contract, since the law provides for a separate document for this case.

A will cannot be considered a continuation of a marital agreement, even if the wording of the subject is completely identical in both transactions. If the contract does not directly indicate its validity after the death of one of the spouses, it is automatically terminated, and the property is transferred to the person specified in the will.

Inheritance of the property of a deceased person by law

If the deceased spouse did not have time to draw up a will during his lifetime or did not want to do this, the second party to the marriage contract has the right to count on receiving property in the first place, since this is indicated in the law (clause 1 of Article 1142 of the Civil Code of the Russian Federation).

The size of the spouse's inheritance share depends on the number of equal successors, which include:

parents or adoptive parents of the deceased;
all officially recognized children of the deceased, including adopted children;
dependents (disabled persons whom the testator provided financially for a year or more).

In the case of inheritance by law, the widowed citizen will receive a share in the same amount as all other first-line applicants (for example, if there are three of them, then each will receive 1/3 of the inheritance mass).

When determining inheritance shares, it is necessary to take into account the property regime established by the marriage contract. If ownership of property is joint, the surviving spouse becomes the heir of the first priority, and therefore has the right to possess things registered in the name of the deceased.

Moreover, if real estate or other property was acquired during marriage, then regardless of the presence or absence of a will, the heir will be the party to the marital agreement.

When a separate property regime is established, the surviving spouse does not have the right to claim any property recorded in the agreement for the deceased. He can only dispose of those things that belong to him based on the provisions of the marriage agreement. The exception is situations when the testator has no other applicants.

Regardless of the terms of the contract, as well as the will, it is imperative, first of all, to be guided by the norms of Chapter 63 of the Civil Code of the Russian Federation.

Is it possible to conclude a marital contract in the event of the death of a husband or wife?

A prenuptial agreement is not a disposition of property in the event of the death of one of the spouses. A similar rule follows from Article 40 of the RF IC. The legal act stipulates that the marital contract regulates the property rights and obligations of the husband and wife in marriage or in the event of its dissolution. The article does not contain rules on the basis of which the fate of property could be determined in the event of the death of a spouse.

For your information

Moreover, in the question of the possibility of concluding a marriage contract in the event of the death of a spouse, it is necessary to take into account part 3 of article 42 of the RF IC. It states that the contract cannot limit the legal rights and interests of the husband or wife. The spouse has the right to transfer his share of property by inheritance. Additionally, the provisions of the document must not place the husband or wife at a disadvantage. Based on the above, we can conclude that a marriage contract is not concluded in the event of the death of a spouse. If spouses want to manage their property in the event of death, they can divide the property and make a will. The execution of the document is regulated by Chapter 62 of the Civil Code of the Russian Federation.

Distribution in separate property

This regime means that the property that a spouse acquired during marriage is his personal property (as it would be in the absence of a relationship).

Such property can be freely disposed of at your own discretion without the consent of the spouse.

Real estate and other things are not subject to division, and the notary can immediately begin distributing such property by inheritance.

Let's consider an example with a land plot, provided that the land plot was acquired by the husband under a separate ownership regime.

Distribution takes place only by inheritance, and in the absence of a will, the final share of the land plot will be: for the wife - 1/5; for each of the husband’s parents – 1/5; for each of the husband’s children – 1/5.

Please note that if the deceased spouse has a will that does not mention the other spouse, then they will have no legal rights to the separate property.

In the example described above, if the husband bequeathed everything to the children, the wife will receive nothing. And the share of each of the husband’s children (even if they are born from a different mother) will be ½.

Family Code on marriage contracts after death

The registration of a marriage contract is regulated by Chapter 8 of the RF IC. There are no provisions affecting the death of a spouse. The issue of termination of a marriage contract is contained in Article 43 of the RF IC. The legal act states that the agreement ceases to be valid upon the completion of the marriage. This issue is described in detail in Article 16 of the RF IC. The grounds for ending a marriage are divorce, recognition of one of the spouses as deceased, or the actual death of the husband or wife. It turns out that death becomes a reason for terminating the marriage contract (Article 43 of the RF IC).

Attention

However, as stated above, not all courts are clear on whether a prenuptial agreement is valid after death. Representatives of authorized bodies agree that a matrimonial contract cannot reflect the rights that arise in connection with the death of one of the participants in the family union. The issue is regulated in detail by inheritance law (Section 5 of the Civil Code of the Russian Federation). If the marriage contract contains rules regarding the distribution of property in the event of the death of the husband or wife, the contract will be considered void.

Marriage agreement after the death of a spouse with inheritance

In the Russian Federation, there are two methods of inheritance - by law or by will (Chapter - Civil Code of the Russian Federation). If one of the spouses has made an order in the event of their death, the property will be divided taking into account the wishes of the owner. When there is no will, inheritance will take place according to law.

IMPORTANT

However, the presence of a marriage contract can affect the distribution of property in the event of the death of one of the spouses. This position is taken by the Supreme Court. The corresponding opinion was set out in Resolution of the Plenum of the RF Armed Forces No. dated May 29, 2012. The legal act reflects that the inheritance will include the citizen’s personal property and that part of the jointly acquired property that was due to him as part of the marriage contract, if the document previously determined the person who owns this or that property. Moreover, it does not matter to whom exactly the property was registered.

In practice, a marriage contract can regulate the property relations of spouses only in the event of divorce. If the document does not distribute the property in advance, the paper will not be taken into account in the probate process.

Legal consequences

Like any transaction, it can only be concluded during the lifetime of the persons who are potential parties to the contract.

The position of the law is clear - upon termination of a marriage, the termination of the contract occurs automatically, including in the event of the death of one of the couple.

It must be taken into account that in the marriage agreement itself it is unacceptable to contain clauses regulating inheritance relations. Otherwise, the agreement is recognized as inconsistent with the law and, accordingly, invalid in full or in part.

Thus, an agreement containing a clause stating that after the death of the husband the wife receives his entire fortune is considered void.

Expert advice: if you want the inheritance to go to certain people after death, leave a will; an agreement will not help you here. But do not think that the contract cannot have an impact on the distribution of real estate after the death of a spouse and the end of a marriage.

The degree of influence of the agreement on the distribution of property depends on what restrictions will be placed on the majority of the joint property.

The law distinguishes the following regimes:

implementation of joint ownership;
implementation of shared ownership;
separate property regime.

Please note: it is not necessary to establish the same regime for all property (for example, real estate can be in shared ownership, and the rest of the property can be in joint ownership).

What property cannot be obtained under a marital contract in the event of the death of a husband or wife?

As mentioned earlier, a marriage contract does not affect inheritance issues (Article 42 of the RF IC). The document only regulates the division of jointly acquired property in marriage or in the event of dissolution of family legal relations. The husband and wife have the right to determine in advance who will own the property purchased during marriage (Article 42 of the RF IC). The spouse will not be able to receive property under the marriage contract that has not previously been transferred to the citizen as part of the document. If the agreement does not at all regulate the distribution of real estate during the marriage, but only affects divorce, the husband or wife will not be able to receive property under the contract at all in the event of the death of the family partner. The distribution of property will occur by law or by will (Chapter 62, Civil Code of the Russian Federation).

Difference between a prenuptial agreement and a will

From a legal point of view, these documents are fundamentally different. The marriage agreement is signed by two spouses, while the declaration of will is drawn up by one of them. The testator disposes exclusively of his own property. The inheritance estate is formed minus the spousal share. By default, this is half of everything acquired during the marriage. The income of the husband and wife does not matter. Only items purchased before the wedding, as well as items received by gift or inheritance are not taken into account.

A prenuptial agreement is a completely different kind of transaction. Before or after starting a family, people draw up a document under the terms of which marital shares are determined under various circumstances. It is allowed to include items relating to cases of death of one of the parties or both at once. Formally, this is also a posthumous order. This is why misunderstandings often arise when it comes time to interpret a will or distribute the inheritance according to the law among relatives and legal successors.

Is it possible to challenge a marriage contract after the death of a spouse?

Article 43 of the RF IC is devoted to the issue of dissolution of a marriage contract. The legal act states that, as a general rule, termination of a document is possible at the common wish of the spouses. If there is no agreement, the deal can be terminated in court.

The basis for satisfying the applicant’s demands to challenge the marriage contract after the death of the spouse can be (Chapter 29 of the Civil Code of the Russian Federation):

the marital contract substantially violates the rights of the husband or wife;
the deal was concluded under pressure;
the document contains provisions that make the contract invalid (for example, a marriage contract regulates the distribution of property in the event of the death of one of the spouses);
in addition to property issues, the marriage contract reflects provisions regarding the place of residence and raising of children;
The marriage contract is not notarized.

It is necessary to prove the presence of grounds for termination of the marriage contract after the death of the spouse.

Is it possible to include provisions regarding inheritance of property in the event of death in a marriage contract?

But it will not be possible to provide for questions regarding inheritance in a marriage contract. If such instructions are indicated in it, the contract will be declared invalid (in part of this provision or in full). Inheritance is strictly regulated by law, and documents such as a will or an agreement on the division of property allow the disposal of property.

If the testator left behind a will, then the property is transferred to the heirs who are included in it, according to the shares indicated in it. In this case, the order of the heirs by law does not matter. But at the same time, persons who have the right to an obligatory share in the inheritance cannot be disadvantaged.

If the testator did not leave behind a testamentary document, then inheritance is carried out according to law. The first-priority heirs are the closest relatives. If they are absent, they belong to the next line, and so on.

But if before one of the spouses died, a marriage contract was concluded between them, and the inheritance of his property has its own characteristics.

How to appeal a prenuptial agreement after the death of a spouse?

To initiate proceedings to challenge a prenuptial agreement after the death of a husband or wife, the spouse must prepare an application. The rules for drawing up a document are enshrined in Article 131 of the Code of Civil Procedure of the Russian Federation. The claim must be made in writing.

An application to the court to challenge a marriage contract after death consists of the following sections:

Document header . In this section, information about the court that will hear the case is recorded, and the details of the plaintiff and defendant are also entered. It is necessary to provide contact information to contact the applicant.
Name of the claim. Placed below the header in the middle of the sheet.
Main part. In this place, information about the current situation is recorded, the requirements put forward and references to the norms of current legislation regulating the issue of appealing a marital contract after death are provided.
List of applications. The section reflects a list of documents confirming the plaintiff’s case.
Date and signature.

A completed claim to appeal a marriage contract after death should not contain errors or corrections. You can fill out the document by hand or compose it on a computer. The application is always signed manually. Information must be presented to the point. The text should not contain lyrical digressions. It is important to adhere to a business style of presenting information. To avoid mistakes, it is better to use a ready-made document form.

An approximate sample application for challenging a marriage contract after death is available.

The submitted claim form must be supplemented with data individually for a specific situation. The list of applications deserves special attention. It includes documents proving the claims made. It is necessary to prepare a list of attachments taking into account the provisions of Article 132 of the Code of Civil Procedure of the Russian Federation. You will need to provide:

the applicant's identity card;
check for payment of state duty;
a prenuptial agreement that a person wishes to challenge after the death of a spouse.

The list of documents presented above is not exhaustive. Documents may be required for disputed property that the spouses were supposed to divide as part of the marriage contract. The judge has the right to request other documents.

The procedure for appealing a marriage contract after the death of one of the spouses

If a marriage contract violates the rights of one of the spouses, to challenge the contract, you must proceed according to the following scheme:

Make sure there are any violations. The reason for going to court may be the conclusion of a transaction under pressure, the presence of illegal provisions in the document (Chapter 29 of the Civil Code of the Russian Federation).
Prepare a claim and a package of documents. When filling out the application, you need to exercise maximum care. Errors and inaccuracies are unacceptable.
Contact the district court. The documents will be reviewed within 5 days (Article 133 of the Code of Civil Procedure of the Russian Federation). A decision will then be made whether to proceed or not to proceed.
Take part in the proceedings. The date and time of the citizen's hearing will be announced in advance. A summons will be sent for this purpose.
Find out the final solution. If the applicant is not satisfied with it, the verdict can be challenged by preparing an appeal (Article 320 of the Code of Civil Procedure of the Russian Federation).

Features of the termination procedure

With mutual consent of the parties

A marriage contract, if there is mutual consent of the parties, can be terminated by any notary in Russia. The parties have the right not to disclose the reasons for their decision to the notary.

Before going to him on a personal visit, the husband and wife or former spouses together draw up 3 copies of the termination agreement, a sample of which can be viewed here. Additionally, the following documents should be prepared:

Two originals of the marriage contract.
Passports.

During the visit by his spouses, the notary must check the documents provided to him, make sure that the spouses or former spouses are legally capable citizens, accept payment for services and put a certification inscription on all copies of the termination agreement. After this, the marriage contract is considered officially terminated.

Unilaterally

The court resolves disputes between legal entities, citizens and government bodies in Russia, including disputes regarding marriage contracts. In order for the consideration of the case to end with a positive result, it is necessary to follow the steps described below.

First of all, the court needs to prove that the applicant has exhausted all possible ways to peacefully resolve the conflict. Before going to court, you should prepare and submit to the potential defendant a proposal to terminate the contract, in which you should describe what does not suit the applicant in the contract and allows him to demand termination of the contract.

The proposal can be submitted by mail with a return receipt attached to the letter, or delivered in person to the potential defendant. In the second case, it is important that the other party signs the second copy of the proposal, which remains with the applicant. As a rule, the deadline for a response is set within 30 days.

If the conflict could not be resolved peacefully, then the interested party should involve a state arbiter - the court - in resolving it. Before you begin preparing claim documents, it is necessary to resolve issues of jurisdiction and jurisdiction of the claim.

Cases related to disagreements regarding marriage contracts are resolved:

A magistrate, if the plaintiff has declared non-property claims or property claims with a price of less than 50,000 rubles.
By the district court, if the plaintiff made property claims exceeding 50,000 rubles.

The following rules apply regarding jurisdiction:

If the plaintiff is the heir of the deceased spouse, then the dispute regarding the marriage contract must be considered at the place where the inheritance was opened.
If the plaintiff is a party to the contract, then the dispute must be considered at the place of residence or temporary residence of the defendant.
If the parties to the dispute sign an agreement on jurisdiction, the dispute must be heard in the court of their choice.

Next, the applicant prepares the text of the statement of claim independently or delegates the preparation process to a lawyer or attorney. The following sample statements can help the applicant prepare for the trial on his own:

Declaration of invalidity of the marriage contract.
Allegation of material violation of the terms of the marriage contract.

It is very important to describe in the statement what exactly the violations of the law committed by the defendant are, and in what circumstances they occurred. You also need to indicate whether the pre-trial procedure for resolving the conflict was followed, and directly write about your demand - to terminate the marriage contract.

Then the applicant prepares additional documents and evidence, a detailed list of which is described in the chapter “List of documents for filing a claim,” and pays the state fee. Details for payment must be found on the website of the court that will consider the claim.

Next, the application with documents is transferred to the court office in one of 3 possible ways:

Bring the documents in person or authorize a representative to do so by issuing him a judicial power of attorney.
Send through GAS "Justice".
Send by mail.

After the documents are accepted and the court takes over the case, the office will send a summons by mail, where the date and number of the office where you should go to participate in the hearing will be written. Before going to the hearing, it is advisable to familiarize yourself with the rules of conduct in court, which will help you show yourself in the best light before the judge and, thereby, increase the likelihood of a positive decision:

Emotions should be left outside the judge's office. At the hearing, there is no need to shout or insult the judge or other participants in the process.
You should not interrupt the judge.
Whenever you address a judge, you must first stand up, say “Your Honor,” and only then say the essence of the appeal.
You need to talk only about the essence of the matter, there is no need to go into assumptions, conjectures and rumors.
To substantiate your words, you must refer to the available evidence.
And, of course, you need to be present at every meeting. If this is not possible, a representative should be hired.

The marriage contract will be recognized as terminated only after the court decision comes into force. This means that all obligations under it are considered terminated.

After the divorce process is completed

After a divorce, the marriage contract is terminated according to the same rules that were indicated in the chapters “With mutual consent of the parties” and “Unilaterally”.

Deadlines and state fees

When considering a case, the judge must take into account all the evidence, take into account the arguments of the participants in the hearing, analyze the legislation, and review existing practice on the issue. It takes time to make an objective decision on challenging a marriage contract after the death of a spouse. Therefore, proceedings in the district court last up to 2 months (Article 154 of the Code of Civil Procedure of the Russian Federation). The death of a spouse complicates matters. Additionally, there may be other circumstances that do not allow a quick decision to be made. If the situation is difficult, the period may be extended for another month.

IMPORTANT

A verdict on challenging a marriage contract after the death of a husband or wife does not come into force immediately. Participants in the proceedings are given 1 month to appeal the decision (Article 321 of the Code of Civil Procedure of the Russian Federation). If the spouse uses this right, the consideration of the case will be extended. In total, the proceedings will take 3 months.

In order for the situation of appealing a marriage contract after death to be considered in court, the interested spouse must pay a state fee. Proceedings during which a contract is contested are included in the category of non-property disputes. The state fee for consideration of the case is 300 rubles (Article 333.19 of the Tax Code of the Russian Federation). Participants in the proceedings have the right to involve a lawyer. Representative services must be paid separately.

Arbitrage practice

Proceedings concerning challenges to prenuptial agreements after the death of a spouse are extremely controversial. The decision is made depending on individual characteristics. The court may satisfy the applicant's demands if compelling evidence is provided.

Examples from judicial practice

A man’s daughter from his first marriage applied to the court with a request to dissolve her father’s marriage contract with his new wife after the death of her parent. When the couple got married, a formal agreement was concluded under which the apartment purchased in the wife's name became the woman's personal property. The document was notarized and prepared taking into account other rules. The marriage contract did not affect other property. The plaintiff demanded that the apartment be included in the estate together with other property of the late husband. The court reviewed the case materials and rejected the application. The representative of the authority motivated his decision by the fact that the ownership of the premises arose with the man’s new wife immediately after the conclusion of the marriage contract. At that moment, the spouses were married, and the subsequent death of the husband cannot be grounds for challenging the agreement. The apartment was excluded from the inheritance estate.

There is another clear example. The applicant applied to the court to challenge the marriage contract between his father and stepmother, after the death of the man, citing the fact that the agreement was not notarized. The representative of the district court fully satisfied the plaintiff’s demands and included all the property distributed under the agreement into the inheritance estate.

Is it necessary to enter into a prenuptial agreement?

The law does not oblige citizens to enter into contractual relations. The same cannot be said about credit institutions.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Many banks began to require their clients to enter into such agreements. Otherwise, they refuse to issue large loans, for example, mortgages.

The main reason is divorce. The high percentage of divorces in the country leads to the need for additional guarantees. After all, when spouses divorce, it is not entirely clear who will have to repay the loan.

Litigation usually takes a long time. Therefore, many credit institutions have developed their own template for a marriage contract. The borrower remains to decide whether these lending conditions are suitable for him or not.

If the borrower agrees to enter into a marriage contract, then lawyers advise studying its provisions first. The best option is to take a bank sample and visit an independent lawyer. If the agreement is drawn up with a bias in favor of the bank, then its provisions can be corrected.

What if the marriage contract was drawn up by the spouses long before contacting the bank? This happens periodically. However, the lender may not be satisfied with the provisions of the document. To make changes to an existing contract, spouses will need to enter into an additional agreement. After which a copy of the document will need to be provided to the bank.

Example. Ivanov K. took out a mortgage loan from the bank. The marriage agreement stated that the mortgaged property belonged to the borrower. The spouse has no rights to the apartment. After 5 years, Ivanov began to have financial problems. As a result, the family broke up. The apartment was taken to pay off the debt. The marriage contract protected the borrower's ex-wife from claims from the lender.

The presence of a prenuptial agreement in some situations is very beneficial to the parties to the transaction. Mortgage loans are classified as long-term loans.

A lot can happen in 15–20 years If we take the above example as a basis, the borrower’s spouse could have suffered significantly. For example, if citizen Ivanov became insolvent, the loan obligations would pass to his wife. Property that was bought by a woman before marriage could come under attack.

Problems and nuances

It is noteworthy that the deceased himself cannot be named as a defendant in cases challenging a marriage contract after death. This explanation was given by the Judicial Collegium for Civil Cases in paragraph 6 of the resolution of the plenum of the Supreme Court of the Russian Federation No. dated May 29, 2012. Demands can only be made against living citizens. This is due to the fact that the deceased does not bear legal responsibility. Therefore, in most cases, the marriage contract of spouses after the death of one of them is disputed by the heirs, whose property rights are infringed by the agreement.
In order for the requirements of the marriage contract to be taken into account, the document must be presented to a notary during the process of registering an inheritance. It is important that the agreement is drawn up according to all the rules. In particular, notarization is required (Article 41 of the RF IC). If the marriage contract is not certified, the document will be declared invalid, and the property of the husband and wife will be distributed according to the general procedure.

The prenuptial agreement does not regulate the inheritance issues of the husband and wife. However, the provisions of a marital contract may be taken into account when distributing property after the death of the property owner. The rule applies if, within the framework of the contract, the husband and wife distributed the property they owned even before the death of one of the participants in the marriage. In all other cases, the rules governing inheritance apply. If the agreement violates the rights of a citizen, the document can be challenged.

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Why do you need a marriage contract?

A prenuptial agreement allows spouses to regulate property relations between themselves. In some cases, the document continues to be valid even after the death of the husband/wife.

What does a marriage contract include:

The document can be concluded both in relation to property that the spouses already have, and that which will be acquired in the future.
If necessary, spouses can agree on how to support each other and distribute the expenses that each of them will bear.
Also, the parties to the agreement can stipulate a list of property that will go to each of them upon divorce.
The rights and obligations of the parties to the agreement may be limited to certain periods or depend on the occurrence of specific events.

The contract should not limit the legal capacity/capacity of the participants. Also, the agreement cannot limit the right to judicial protection, regulate personal non-property relations, or the parental rights of spouses. That is, the agreement should not contain conditions that obviously put one of the participants in an extremely disadvantageous position.