Can a common-law wife claim the inheritance of her cohabitant?

In the modern world, not all couples are in a hurry to officially register their marriage. Such relationships are usually called civil marriage. The woman in this union is called a common-law wife, and officially a cohabitant. In such families, spouses manage a common household, give birth to children, and can live wonderfully and happily as long as everyone is alive and well. But different things happen in life, and when a spouse dies, the question arises whether a common-law wife has the right to inherit after the death of her husband.

The Russian Civil Code states that according to the law there is a sequence of inheritance. Queues are formed according to the applicants' affiliation with the deceased and the degree of relationship with him.

But a common-law wife or husband is not mentioned anywhere, therefore the rights of spouses when inheriting in a civil marriage are not provided for in law. Lawyers do not use the term “civil marriage”; among legal professionals they refer to actual marital relations.

If the marriage was not registered in the registry office, then according to the law the cohabitant has no rights and cannot claim a share of the inheritance.

But there are some exceptions that should be carefully considered.

How to obtain inheritance rights?

All legitimate claimants who have the right to receive property or monetary property are distributed in the following sequence:

1. The first priority of legal heirs is the children of the deceased, the legal spouse, and the parents of the testator.
2. The second line of heirs are the sisters and brothers of the deceased, grandfather and grandmother on both lines.
3. The third line of applicants are the siblings and half-brothers of the mother and father of the deceased.
4. The fourth line is the mothers and fathers of grandparents.
5. The fifth line is the brothers and sisters of grandparents.
6. Children of brothers and sisters of all grandparents, as well as children whose parents are grandchildren, cousins.
7. Non-natural parents - stepfather or stepmother, as well as non-natural children. Incapacitated dependents of the deceased.

Thus, after the death of one of the spouses, a common-law wife or husband can be included in the heirs of the eighth line if they were dependent on the deceased due to lack of ability to work or being a minor.

The unofficial wife, who is mentioned in the will, by rights belongs to the line in which the heirs were found. The absence of the actual wife in the list of heirs determined by law does not deprive the right of inheritance of her child born from the testator or conceived during his lifetime. He is included in the first place of successors by law and until he reaches 18 years of age is the legal holder of a mandatory share of the inheritance. If the child is underage, his legal representative in accepting and disposing of property rights is the mother.

But for this it is necessary to prove the fact of marriage. Even if the court recognizes the actual residence of one family, there is no possibility of being considered one of the heirs of the first priority.

If there is no will, the deceased's property will be distributed in full equally among the priority heirs.

Subsequent queues that follow the priority ones will be denied the right to inherit even a small part of the property.

What can you claim?

Since a cohabitant cannot legally receive property, it is possible to claim an inheritance only if the following circumstances exist:

1. The common-law wife is indicated in the text of the will.
2. The cohabitant is incapacitated and lived as a dependent of the testator. In the latter case, the common-law wife is included in the conditional eighth line of heirs. The cohabitant will be able to enter into inheritance only when representatives of the previous seven orders are absent.

Also, according to the husband’s will, the “common-law” wife has the right to become a legatee and enjoy certain material benefits on special grounds specified in the will.

But even here the woman will face many difficulties. To do this, she will need a complete evidence base. In most cases, a common-law wife will have to defend her right to inheritance in court.

If the wife has not worked for the last year and was fully supported by the deceased common-law spouse, then she can be included in the list of legal heirs only after the fact of incapacity is proven. The evidence will be medical certificates that confirm that the common-law spouse has been disabled for more than a year.

✨ Results

In the event that inheritance occurs for a common-law spouse, the heir will be able to receive his part of the property if:

• the common-law spouse is recognized as a dependent of the testator;
• a will has been made to the heir;
• the inherited property was transferred during the life of the testator;
• an inheritance agreement has been drawn up.

To receive an inheritance, you will need to contact a notary and prove your right to receive the inheritance.

How to register and receive an inheritance for a common-law wife

After the actual spouse has died, the wife, if the reasons listed above exist, can start registering the inheritance. To do this you need to do the following:

1. Appeal to a notary operating in the territory of the last place of residence of the deceased or keeping the second copy of his will.
2. Writing an application for acceptance of property rights or issuance of a certificate of their existence.
3. Providing the necessary package of papers.
4. Payment of state duty (in case of receiving a certificate of inheritance).

When accepting an inheritance, you must have the following documents with you:

• Death certificate of husband.
• Will or certificates confirming the fact of dependency.
• An act of deregistration of the deceased at his last place of residence.
• Your passport.

Depending on the type of inherited property, title deeds for the property, a land boundary plan, an extract from the Unified State Register for real estate, a vehicle passport, a certificate of absence of debt on property and others may be required.

What is a civil marriage?

In accordance with Articles 1141 and 1142 of the Civil Code of the Russian Federation, only legal spouses of deceased citizens whose marriage was officially registered with the registry office are called upon to inherit. When contacting a notary office at the place where the inheritance was opened, the specialist must present a document confirming the fact of registration of the marriage relationship, in other words, a marriage registration certificate.

A marriage that has not undergone the appropriate registration procedure is recognized as civil. Although such relations between citizens do not equate to an official marriage, spouses also have their legal rights and obligations towards each other, but this does not apply to inheritance.

Current legislation does not prohibit individuals from deciding independently whether to register their relationships or not, but regulation in this area is currently underdeveloped.

How to prove the fact of cohabitation

If a common-law wife enters into inheritance as a dependent of her late husband, she will first need to recognize the fact of cohabitation and maintenance at his expense.

This can be done exclusively in court and only in the presence of the following circumstances:

• disability;
• living with the testator and receiving the main amount of livelihood from him for more than twelve months;
• availability of evidence of the facts translated above;
• absence of the status of an unworthy heir (assigned by the court for illegal actions against the testator or other heirs).

Algorithm of actions of the de facto wife to recognize the fact of her dependence at the expense of the deceased spouse:

1. Collection of documentary evidence (certificate confirming disability, testimony of witnesses, etc.).
2. Writing an application (indicate: the name of the court, your personal and contact information, the period and cause of the disability, information about the de facto spouse, circumstances confirming the fact of dependency, the purpose of the application, the essence of the request and a list of attached documents). Submitting an application and accompanying official papers to the district court at your place of residence.
3. Waiting for a court order.

In case of a positive decision of the court, the common-law wife receives a documented copy of it and, on its basis, begins to formalize her legal rights to the inheritance.

Deadlines

The period allotted for declaring one's rights to inheritance is limited to 6 months from the date of death of the testator. In the case of sub-appointment of the actual wife in the will, the period for taking over rights is 3 months after the non-acceptance of the testator’s property by the persons appointed by him or 6 months from the moment of their refusal to inherit. Receiving a testamentary refusal is permissible within 3 years from the date of opening of the inheritance.

Missing the established deadlines is fraught with loss of inheritance rights. But if there are good reasons, the period for their registration can be extended in court.

Situations where the successor did not and could not know about the death of the testator or, for other objective reasons, could not timely express his interest in accepting inheritance rights are valid for restoring the deadline for accepting an inheritance. These may include prolonged illness, complete or partial incapacity, preparation of documents necessary for the case, long absence without the opportunity to send a notarized application for acceptance of inheritance by mail, and others. There are often requests from clients who are interested in how to prove a civil marriage in order to acquire the right to the inheritance of a deceased partner. Unfortunately, the relevance of this issue disappeared back in 1969, when the Code on Marriage and Family of the RSFSR finally deprived the actual marriage of legal significance, and at the same time excluded the possibility of proving the right to the property of the deceased unofficial spouse. The current Family Code of the Russian Federation supports this position and makes it impossible to inherit according to the law in accordance with the Civil Code of the Russian Federation.

However, there are other grounds for receiving a husband’s share of property, which are indicated in the article. But even their presence does not free the actual wife from disputes and the need to defend her rights, in some cases even in court.

How is jointly acquired property inherited after the death of one of the spouses?

Lawyer Antonov A.P.

Property acquired by spouses during marriage is their joint property, except in cases where other provisions are specified in the marriage contract or the spouses entered into an agreement on the division of property (Articles 33, 34, 38 of the RF IC; Article 256 of the RF Civil Code). As a general rule, the common property of spouses includes: the income of each spouse from labor, entrepreneurial activity and the results of intellectual activity, as well as pensions, benefits and other monetary payments that are received by the spouses and do not have a special purpose, for example, amounts of financial assistance; movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions and other commercial organizations, which were acquired from the common income of the spouses; any other property that the spouses acquired during the marriage. In this case, it does not matter in the name of which spouse it was purchased, in the name of which or by which of the spouses the funds were deposited. At the same time, property received by one of the spouses during marriage by inheritance or as a gift, as well as personal items, except for jewelry and other luxury items, are not jointly acquired property (Article 36 of the RF IC). The surviving spouse retains the right to part of the common property acquired during the marriage with the testator. The deceased spouse's share in such property is included in the inheritance and passes to the heirs. As a general rule, when determining shares in the common property of spouses, their shares are recognized as equal. Otherwise, it may be provided by a marriage contract, a joint will of the spouses, an inheritance agreement or a court decision (clause 4 of article 256, article 1150 of the Civil Code of the Russian Federation; clause 1 of article 39 of the RF IC). For example, if spouses have an apartment in joint ownership, only a share equal to 1/2 of the deceased spouse’s apartment is included in the inheritance estate. The remaining 1/2 share in the ownership of the apartment remains with the surviving spouse. In this case, the surviving spouse has the right to file an application for the absence of his share in the property acquired during the marriage. Then all this property will be included in the inheritance (clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 N 9; clause 9 of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on July 4, 2018). In general, to accept inheritance of jointly acquired property after the death of one of the spouses, we recommend following the following algorithm.

Step 1. Find out whether there is a will or inheritance agreement. If there is a will certified by a notary or other authorized person, the share in the joint property of the spouses is distributed in accordance with the order of the testator. Thus, a will may provide for the creation of an inheritance fund that carries out activities to manage the property of the deceased spouse received through inheritance in accordance with the conditions for managing the inheritance fund. Let us note that the spouses (testators) can make orders regarding the inheritance of common property and the determination of the shares of the heirs in a joint will. They can also enter into an inheritance agreement, including the appropriate conditions (clause 1 of Article 123.20-1, Articles 1118, 1119, clauses 1, 5 of Article 1140.1 of the Civil Code of the Russian Federation). An exception to the principle of freedom of will is the rule on compulsory share in the inheritance. In accordance with it, the testator(s) or the testator under an inheritance agreement cannot deprive the right to inherit from their minor or disabled children, disabled spouse and parents, as well as their disabled dependents, that is, all persons supported by the testator. Regardless of the contents of the will, they have the right to receive at least half of the share that would be due to each of them upon inheritance by law (clause 4 of article 1118, clause 6 of article 1140.1, clause 1 of article 1149 of the Civil Code of the Russian Federation).

Reference. Disabled persons When determining inheritance rights, the disabled include (Article 8.2 of the Law of November 26, 2001 N 147-FZ; clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 N 9): minors; women over 55 years old and men over 60 years old; citizens recognized as disabled people of groups I, II or III (regardless of the assignment of a disability pension to them).

In this case, the above-mentioned persons lose the right to an obligatory share if they are also beneficiaries of an inheritance fund established in pursuance of the testator’s will, and during the period established for acceptance of the inheritance, they did not inform the notary leading the inheritance case about the renunciation of all rights of the beneficiary (Art. 123.20-3, paragraph 5 of Article 1149 of the Civil Code of the Russian Federation). The obligatory share includes everything that the heir, who has the right to such a share, receives from the inheritance for any reason (clause 3 of Article 1149 of the Civil Code of the Russian Federation).

Step 2. Consider the peculiarities of inheritance by law (if there is no will or inheritance agreement) If the deceased spouse did not draw up a will or did not enter into an inheritance agreement, inheritance is carried out according to the law (Part 1 of Article 1111 of the Civil Code of the Russian Federation). Heirs by law are called upon to inherit in order of priority. Persons indicated in the same order inherit in equal shares, with the exception of heirs by right of representation. If there are no heirs in one line, heirs in the next line are called upon to inherit. The heirs of the first stage are the children, spouse and parents of the testator, who most often inherit property (Articles 1141, 1142 of the Civil Code of the Russian Federation). If there is no dispute between the heirs, there is no court decision and there is no marriage contract, half of all property jointly acquired by the spouses is included in the inheritance mass. Further, this half is inherited by the surviving spouse alone or by the surviving spouse and other first-degree heirs. In this case, the inheritance is distributed between them in equal shares (Article 39 of the RF IC; Article 1141 of the RF Civil Code). When one of the legal heirs died before the opening of the inheritance or at the same time as the testator, the share passes to the descendants and is divided equally. For example, after the death of a mother and son, the son’s children will each receive 1/2 of the inheritance mass (Clause 1 of Article 1146 of the Civil Code of the Russian Federation).

Step 3. Accept the inheritance To accept the inheritance, you must submit an application for acceptance of the inheritance or an application for the issuance of a certificate of inheritance to the notary at the last place of residence of the testator. The heir chooses the type of application at his own discretion (clause 1 of Article 1153 of the Civil Code of the Russian Federation). Usually, in an application for acceptance of an inheritance, a request is written to issue a certificate of the right to inheritance. In this case, there will be no need to submit a separate application for the issuance of a certificate, provided that in such an application the composition of the inherited property for which the heir requests to issue a certificate is indicated. If you submit an application for a certificate of right to inheritance, then the inheritance is considered accepted by you even in the absence of a separate application for acceptance of the inheritance (clause 5.15, 13.1 of the Methodological Recommendations, approved by the decision of the FNP Board of March 25, 2019, protocol N 03/ 19). You can clarify the contact details of the notary of the notarial district in which the deceased was registered in the notary chamber of the corresponding territorial entity (Article 123.16-3 of the Civil Code of the Russian Federation). As a general rule, you can accept an inheritance within six months from the date of opening of the inheritance. The time of opening of the inheritance is the moment of death of the citizen. Accordingly, the day of opening of the inheritance should be considered the date on which the moment of death of the testator falls, that is, the date of his death (clause 1 of Article 1114, clause 1 of Article 1154 of the Civil Code of the Russian Federation). If this deadline is missed, other options for acquiring an inheritance are possible: restoration of the missed deadline or recognition of the right to inherited property in court, as well as recognition of the heir as having entered into the inheritance by all other heirs by submitting an appropriate application to a notary (Article 1155 of the Civil Code of the Russian Federation).

Step 4. Prepare the necessary documents and submit them to the notary. The notary may require documents and information confirming (Articles 72, 73 of the Fundamentals of the Legislation of the Russian Federation on Notaries; clauses 46 - 49, 56, 57 of the Regulations, approved by Order of the Ministry of Justice Russia dated August 30, 2017 N 156; clause 13.11 of the Methodological Recommendations): fact, moment and place of death of the testator (for example, a death certificate issued by the civil registry office); grounds for calling to inheritance: in particular, this is a will (in case of inheritance by will) or, for example, a marriage certificate (in case of inheritance by law); ownership of the property by the testator (for example, a certificate of ownership of real estate, an extract from the Unified State Register of Real Estate (USRN, until 01/01/2017 - USRE)). It should be taken into account that information from the Unified State Register of Real Estate, containing, in particular, data on the rights of the testator and his surviving spouse to inherited property, is requested by the notary himself within three working days from the date of your application. At the same time, the notary has no right to require you to provide such information (Article 47.1 of the Fundamentals of the Legislation of the Russian Federation on Notaries; Part 14, Article 62 of the Law of July 13, 2015 N 218-FZ); the value of the property, which can be confirmed by an independent assessment of relevant organizations. However, this does not mean that the notary has the right to demand from the heirs documents issued by such organizations. For example, the cost of an apartment can be confirmed by an extract from the Unified State Register of Cadastral Value. In addition, for the issuance of a certificate of inheritance rights, it is necessary to pay a state fee (or a notary fee - when contacting a private notary), the amount of which depends on the share in the ownership of the apartment (clause 22, clause 1, article 333.24, clause 3 p 1, Article 333.25 of the Tax Code of the Russian Federation; Parts 1, 2, Article 22 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

Reference. Amount of state duty (tariff) The amount of state duty (notarial tariff) for issuing a certificate of inheritance by a notary to: natural and adopted children, spouse, parents, full brothers and sisters of the testator - 0.3% of the value of the inherited property, but not more than 100,000 rubles. ; other heirs - 0.6% of the value of the inherited property, but not more than 1,000,000 rubles. In particular, heirs who have not reached the age of majority on the day of opening of the inheritance, as well as persons inheriting an apartment if they lived together with the testator on the day of his death and continue to live in this apartment after his death are exempt from paying the state duty (clause 22 p. 1 Article 333.24, paragraph 5 Article 333.38 of the Tax Code of the Russian Federation).

The notary has the right to require other documents, since there is no exhaustive list of required documents.

Step 5. Obtain a certificate of the right to inheritance You can receive a certificate of the right to inheritance after six months from the date of death of the testator. The notary issues it if you have submitted all the necessary documents. He can issue a certificate before the expiration of the specified period if there is no doubt about the number of persons who applied for a certificate of the right to inheritance and other possible heirs (clauses 1, 2 of Article 1163 of the Civil Code of the Russian Federation). A certificate of the right to inheritance issued on paper by a notary since December 29, 2020 must have machine-readable markings with which you can check its accuracy (Article 5.1, Part 2, Article 45.1 of the Fundamentals of the Legislation of the Russian Federation on Notaries; Part 1, Article 6 of the Law dated December 27, 2019 N 480-FZ). The given procedure for registering inheritance rights to a share in the common property of spouses is the same for all types of property - from real estate to cash deposits. However, to inherit certain types of property, for example, shares in the authorized capital of organizations, you need to follow the rules that take into account the specifics of a particular type of property (Methodological recommendations on the topic “On the inheritance of shares in the authorized capital of limited liability companies” (approved at a meeting of the Coordination methodological council of notary chambers of the Southern Federal District, North-Kazakhstan Federal District, Central Federal District of the Russian Federation 28 - 29.05.2010)).

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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How can a common-law wife enter into an inheritance?

Any citizen of Russia has the right to dispose of his property at his own discretion. Therefore, if a man lives with a woman not in an official marriage, in order to ensure the right to inheritance of his common-law wife after the death of her common-law husband, the man can draw up a will and assign all or part of his property to his cohabitant.

It is important to take into account that in the will he must clearly indicate exactly what share of his property he bequeaths to his common-law spouse.

In the same way, a common-law partner can claim his or her spouse's inheritance. The rights of spouses in inheritance in a civil marriage arise on the basis of a will.

But it is worth taking into account that if a cohabitant has the right to inherit under a will, this does not in all cases mean that this right will be realized.

There is a possibility of the disposition being challenged by the legal heirs. If such lawsuits begin, the spouse can also defend her interests. For example, the fact that the document was drawn up in an incapacitated state cannot be the basis for declaring a will worthless. To do this, the applicant presents to the court the testimony of witnesses and certificates from a psychiatric clinic.

The heir under the will is also not prohibited from presenting to the court his evidence that confirms the testator’s legal capacity. The court decision will be made based on the totality of evidence presented by all parties.

Underwater rocks

When registering an inheritance, a common-law wife must take into account the problems that she may encounter.
The most common among them are:

1. The testator is not registered as the father on the birth certificate of the common child. In this case, there is little chance that he will become a first-line heir, since he will have to prove paternity through the court. Carrying out genetic testing after the death of a citizen can be difficult. General photos and videos are not always convincing evidence for a judge about family ties.
2. The more close relatives the testator has claiming property, the less chance the common-law wife has of winning the case. If a citizen was officially married, but did not live with another spouse, then she will still be considered a first-degree heir.
3. Filing a claim and collecting evidence to confirm a civil marriage is a rather complex process that requires certain legal knowledge. Before going to court, it is recommended to consult with experts on this issue. Lawyers can tell you what chances a common-law wife has of getting her share of the inheritance.

What you need to do to prove your right to inheritance

In order for a common-law wife to enter into the inheritance of her partner, there are several ways to prove this right to the relatives of the deceased:

Preliminarily draw up an agreement with your common-law spouse, with whom you can register part of the property and real estate that a woman can receive after the death of her partner. Such a document is called a property division agreement. It must be in writing and certified by a notary. Only after this the document will have legal force.

Prove your right legally. This is a rather long and difficult process. But defending your rights to property to relatives is quite possible. To do this, it is necessary to collect evidence that the woman lived for a certain time with the deceased, ran a common household with him, was employed and bought some of the things from the property that is to be divided.

What documents can be evidence

The wife will have to defend the right to inheritance after the death of her common-law husband in court. Therefore, you will need to draw up a statement of claim and present the necessary documents along with it:

1. A certificate from the housing office stating that the applicant had temporary or permanent registration in the apartment, which was the property of the deceased.
2. If common-law spouses rented housing and paid for it in half, then you need to submit a lease agreement where both payers are indicated.
3. In the case where the applicant did not have registration in the deceased’s living space, a certificate of cohabitation can only be obtained when the neighbors confirm this fact.
4. A copy of the work book with a record of employment.
5. Certificate of income from work. If the applicant receives additional income, you can bring a certificate from the bank.
6. Receipts, receipts, or other payment documents that will prove that the woman purchased certain items.
7. If possible, it is advisable to obtain a certificate of income from your husband’s work. This way it will be clear what share of the total budget the common-law wife’s salary was.
8. If a child was born in a civil union, then his birth certificate, where the deceased is indicated in the “father” column.
9. Testimony from neighbors and acquaintances, work colleagues. They can be presented orally or in writing.
10. Photo and video materials in which both spouses are present during those periods of time when they lived in a civil marriage.

Other evidence that may indicate the fact of an unregistered marriage in order to divide jointly acquired property.

Rights of a cohabitant

The opportunities of a woman who is not in a marital relationship with her common-law husband are significantly limited by law. However, her husband can change things during his lifetime. For example, a man categorically does not want to register a marriage, but decided to transfer his property to his child, parents or brother.

The owner can make a testamentary refusal in favor of his common-law spouse. For example, the heirs will have to provide the woman with the opportunity to live in the house for the rest of her life (Article 1137 of the Civil Code of the Russian Federation).

Example. A widower in adulthood decided to start a family again. However, he categorically refused to get married. The man had a house in the village. His brother lived nearby, who helped him all his life. As a result, the man decided to leave his house to his brother. He made a will accordingly. The former widower had no children from cohabitation with a woman. My own child died in a car accident. However, the woman had a son who lived in her personal home. But the young man, abusing alcohol, periodically caused trouble at home. It was unbearable to live in the house with him. Before his death, the testator fell ill. His common-law wife looked after him all the time. In order not to offend the woman and not to change his promise regarding his brother, the man made changes to his will. He executed a will in favor of his wife. As a result, the brother had to provide the opportunity for his common-law wife to live in the testator’s house.

However, this option greatly depends on the relationship between the heirs and the cohabitant. In the case of a negative relationship, living together will be impossible.

The legatee does not have the right to demand determination of the procedure for using the premises. Therefore, the heirs can rent out the free living space.

Can a common-law spouse waive her rights? Yes. If we take the example under consideration as a basis, then she is not obliged to live in the testator’s house if the living conditions in it are unacceptable. In addition, the woman can return to her own home.

Who monitors the execution of a will? Such a duty may be assigned to the executor of the will. Also, the supervisory function is performed by the notary who executed the will. If the heir is a minor citizen, then the guardianship authority acts in his interests.