Spousal share in inheritance after the death of a spouse

The concept of a spouse’s obligatory share in inheritance

The husband or wife of the deceased testator has every reason to demand the allocation of a compulsory spousal share after the death of the spouse in the event of incapacity for work. In such a situation, the contents of the will do not matter. Disability may be due to the health status of the heir or his age. Documents confirming one of these facts are a duly certified disability certificate or pension certificate. You can also confirm that your spouse has reached retirement age using a civil passport or other document that allows you to identify the citizen and determine his date of birth.

In connection with the implementation of the reform, which postpones the time of retirement to a later date, the concept of persons of pre-retirement age was introduced into the pension legislation. Currently, women from 55 to 60 years old and men from 60 to 65 years old should be considered pre-retirement. Spouses belonging to this category are given the same inheritance privileges as pensioners. This means that they also have the right to claim a mandatory inheritance share.

The spousal share in the inheritance, in the presence of a will, is allocated from the property of the deceased, which was not bequeathed to anyone. At the same time, the law allows for a reduction in the shares of the remaining heirs by law. If this property turns out to be insufficient, the shares of the heirs under the will will also be reduced. We cannot exclude situations where other heirs may completely lose their part of the property, because all of it will be subject to transfer to the disabled spouse of the testator.

How to correctly draw up a will for inheritance

What papers will you need to prepare?

Documentary support of the application for the issuance of a certificate of formation of the spouse’s share involves the transfer into the hands of a notary of a number of papers, without which the procedure simply will not take place.

The applicant will need to prepare:

1. identification;
2. death certificate of the marriage partner;
3. a certificate indicating the fact of registration of the family union with the civil registry office;
4. documentation for joint property - title papers, technical passports, certificates from the Unified State Register of Real Estate, appraisal reports;
5. marriage contract, if the paper was drawn up earlier;
6. consent from the guardianship authorities if the deceased has children under 18 years of age.

The documents provided are thoroughly checked. In particular, the data contained therein and the information specified in the application are verified. Only after the notary has verified the legality of the requirements and the reliability of the information, will he prepare a certificate of assignment of the marital share.

The marital share, which is due to the husband or wife who survives the marriage partner, is allocated without fail and is exactly half of the property acquired jointly. This part becomes the property of the widower or widow in full and is not included in the inheritance. However, renunciation of such a share is permitted, but only with the consent of the legal owner, confirmed by a corresponding statement. Also, the size of the mandatory part can be changed, but for such a procedure there must be extremely compelling reasons.

Is it necessary to allocate a spousal share in the inheritance?

When drawing up a will, the testator must take into account that if his spouse is an incapacitated person due to disability, then he is required to allocate a mandatory share in the inheritance. The same applies to heirs of retirement or pre-retirement age. This must be taken into account when determining the shares of the remaining persons specified in the will.

The testator does not have the right to voluntarily leave a disabled spouse without an inheritance. This is the only restriction on the freedom of will provided for by the legislation of the Russian Federation (Part 1 of Article 1119 of the Civil Code of the Russian Federation). If the testator nevertheless includes in the will a clause on the disinheritance of the spouse to whom the obligatory share must be allocated, it is subject to recognition as invalid and cannot be applied.

If the spouse’s incapacity for work occurs only after the testator has drawn up a will, he has the right to demand an obligatory share of the property even if he is not entitled to anything under the will.

Heirs who have already entered into their rights have the right to file an application for the allocation of a marital share in the inheritance from property that was jointly owned by the husband and wife. In accordance with it, the share of the deceased testator can be determined. But such an application will be accepted only if the consent of the heir claiming the obligatory share is received (Article 75 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

You may find it useful: Samples of applications and documents for inheritance Free consultation with a lawyer for inheritance

Resolving controversial issues

Disputes in inheritance cases are quite common.

Sometimes it is difficult to determine whether property was personal property or joint property. Confusion arises if the property was registered in the name of one person, one spouse also used it, or the item was presented as a gift (of course, without drawing up a corresponding agreement). In such situations, disputes arise between the living spouse and other claimants to the inheritance.

Disputes are resolved in two ways:

• a written agreement on the division of inheritance is concluded;
• the interested party files a claim in court and challenges the order of inheritance.

Agreement

Freedom to enter into contracts is established by civil law. Relatives have the right to draw up any agreement that does not contradict the law and does not violate the rights of the participants. A document certified by a notary has legal significance and is binding.

If during the inheritance process there is a controversial issue that requires legal regulation, the heirs enter into an agreement on the allocation of a share. The document must be notarized. The application is drawn up in any form and is actually a written agreement of the legal successors on the division of property.

In practice, our compatriots rarely resort to such peaceful and effective conflict resolution. As a rule, the heirs agree orally, the agreement is not subsequently fulfilled, and the party whose interests are infringed is forced to go to court.

How to allocate a spousal share after the death of a spouse

To allocate the spousal share, the surviving spouse must submit to a notary an application for the allocation of the spousal share in the inheritance. It is also necessary to provide documents for jointly acquired property and pay a state fee. The entire package of documents is submitted to the notary who opened the inheritance case.

Application to a notary for the allocation of a spousal share in the inheritance

The spouse may enter into an agreement with the heirs on the separation of the marital part from the total estate. In the agreement, the parties determine the shares of each spouse and each heir.

Agreement on allocation of shares with heirs

If the dispute between the heirs cannot be resolved peacefully, the surviving spouse can file a claim in court.

Statement of claim for the allocation of the marital share from the inheritance estate

Increasing and decreasing shares

According to the law, the property of spouses acquired in a marriage union is common. Therefore, the part of each of them is exactly 1/2.

However, in some situations, the court may not comply with the principle of equality of shares, that is, reduce or increase the share of the heir-spouse (Article 39 of the RF IC). The reasons for this must be compelling:

• The couple raised a minor child. Responsibilities for its maintenance will now be assigned to the widowed husband or wife;
• the widower or widow is disabled or their ability to work is limited;
• the testator abused alcohol or drugs, suffered from gambling addiction, intentionally caused harm, did not work anywhere, and did not provide for the family without a good reason.

What part of the property is guaranteed to be received by the spouse?

In accordance with Part 1 of Art. 1149 of the Civil Code of the Russian Federation, the disabled husband or wife of the testator must be allocated at least 50% of the share that they could receive in the event of inheritance by law. In case of inheritance by law, the spouses belong to the number of heirs of the 1st stage. In order to calculate the spouse's share, you will need:

1. Determine what part of the testator's property he would receive as an heir according to the law of the 1st stage. To do this, it is necessary to take into account the shares of other heirs of the same order and other persons for whom the allocation of a mandatory share is provided (including disabled dependents). You should also take into account the interests of the heirs who are yet to be born after the death of the testator (Part 1 of Article 1116 of the Civil Code of the Russian Federation). The shares of applicants for inheritance belonging to the same line are equal.
2. Divide the resulting value by 2. The result of this arithmetic operation will be the size of the spouse’s obligatory share.

From the contents of Art. 1150 of the Civil Code of the Russian Federation it follows that the spouse who has the right to register a compulsory inheritance share can, as a first-degree heir, also lay claim to part of the common property of the spouses, which was acquired during the period of marriage to the deceased. At the same time, his inheritance rights on the second basis cannot be reduced (i.e., he will receive another half of the joint property of the spouses). The exception is situations arising from a joint will of the spouses or an inheritance agreement.

The obligatory spousal share in the inheritance is determined by law in the same way as in the case where there is a will.

Is property personal or shared?

In Art. 34 of the RF IC defines what constitutes joint property:

• movable property (household and computer equipment, vehicles, etc.), real estate acquired by spouses during family life;
• income received in the course of work, individual entrepreneurs;
• money received from other sources (pensions, scholarships, social benefits, financial assistance, etc.);
• deposits, shares in the charters of enterprises, the Central Bank;
• other property acquired by spouses during family relations.

It does not matter who is indicated as the title owner, in whose name the property was purchased, which member of the married couple deposited money or paid for the purchase.

The law also establishes what is the personal property of each spouse. This property...

• acquired before the registration of the marriage;
• donated;
• inherited.

In addition, this includes objects of copyright, patent rights, insurance, compensation, objects of individual use (exceptions are expensive watches, costume jewelry, jewelry, fur coats, and the like).

If it is necessary to separate the share of one of the spouses, the joint property will be divided in half. The husband and wife will own exactly ½ of the joint property. And the personal belongings of the spouses remain undivided property.

Marriage contract

It should be noted that not all married couples limit their relationships to the norms of the Family Code. The law provided for the opportunity for spouses to enter into a marriage contract and personally determine which property regime will be applied.

The husband and wife have the right to establish a different procedure for division in the contract. This means that the allocation of the share will also be different - the one established by the marriage contract.

It is important! The marriage agreement must be correctly drawn up and notarized. Only then will it have legal significance.

You can read about how to correctly draw up a marriage contract here.

Allocation of spousal share

So, with regard to share allocation in the inheritance process, the following rule applies:

• Joint property is divided equally. The surviving spouse will be the owner of ½, which means that his property will not be included in the inheritance. The second half of the common property will belong to the testator and will pass to all potential successors. The widow (or widower) also receives a share of the testator's property.
• The personal property of the testator is divided among the heirs in equal parts. The remaining spouse also has the right to claim part of this property - on an equal basis with other relatives.

In what cases does a spouse lose the right to an obligatory share in the inheritance?

A disabled spouse may lose the right to receive a compulsory share only in exceptional situations expressly prescribed by law. Such situations include:

Recognition of a spouse as an unworthy heir

The testator's spouse was recognized as an unworthy heir (Article 1117 of the Civil Code of the Russian Federation). He cannot claim registration of a compulsory inheritance share in the property if he commits:

• actions violating the law, as a result of which the testator or any of the other heirs suffered;
• actions that create obstacles to the expression of the last will of the spouse;
• unlawful attempts to influence other heirs or actions aimed at redistributing the inheritance.

These grounds are subject to application if they are proven by the court. But if the testator, after establishing the above facts, prepared a new will in which he included the spouse in the list of heirs, the latter’s inheritance rights will be restored.

It should be borne in mind that the remaining heirs and other interested citizens have the right to demand in court the exclusion from the list of heirs of a spouse who is found to have maliciously evaded the obligation to support the deceased, if he was required to do so by law.

How to disinherit an heir by law

Impossibility of transferring part of the property to an heir under a will

Registration of a compulsory share in the property of the spouse will lead to the fact that it will be impossible to transfer his part of the property to the heir under the will (Part 4 of Article 1149 of the Civil Code of the Russian Federation). In this case, the right to an obligatory share is not always lost, but only if the following conditions are simultaneously met:

• the heir, while his spouse was alive, did not use the property to which he claims in accordance with the rule of compulsory share;
• the same property was used by the heir under the will for his own purposes (lived in an apartment, used professional equipment or the testator’s workshop for work, etc.);
• the corresponding decision was made by the court (when considering this issue, the court takes into account the property status of the widowed spouse).

Based on a court decision in the situation under consideration, the size of the obligatory share can be changed downward.

Spouse – beneficiary of the inheritance fund

The spouse whose ability to work is limited is the beneficiary of the inheritance fund. However, if, before the end of the period provided for by law for entering into an inheritance, he completely renounces the rights of the beneficiary, the right to claim inheritance of the obligatory share will be restored. In this case, the obligatory share of the inheritance can be reduced by the court if it is established that the value of the property to be transferred into his ownership significantly exceeds the costs necessary to ensure a decent standard of living. The waiver of beneficiary privileges must be submitted to the notary in charge of the estate.

Refusal of the spousal share in the inheritance

Also, the heir has the right to refuse the obligatory share at his own request. In this case, the shares of persons inheriting under a will or inheritance agreement will be increased. But here we must take into account that the notary will not accept the refusal if it was made in favor of a specific heir.

Application for refusal to allocate the marital share

Lawyer's answers to frequently asked questions

Second time married. During the marriage, we bought an apartment and registered it in our husband’s name. The husband died, and it turned out that he bequeathed the apartment to his daughter. I don't have children. I had a good relationship with my husband’s daughter, but now she wants to kick me out of the apartment. I have no other housing; I live on a disability pension. Do I have the right to an apartment?

You need to contact a notary and allocate the spousal share. You are also entitled to a mandatory share due to disability. The mandatory share will be half of what you are entitled to by law. You submit your applications to the notary office where the will is kept.

The children grew up and were left alone with my husband in a large house with a plot of 10 acres. As I got older, it became very difficult to take care of the household. They sold the house, bought themselves an apartment, and gave the remaining money from the sale of the house to their son to improve his living conditions. My husband and I signed up for a new apartment with 1/2 share each. After the death of her husband, the daughter-in-law insists that the son inherit the father's share. Does he have the right to do this?

Having initially registered an apartment in shares, you have thus divided the jointly acquired property. Half of the apartment is the personal property of your spouse and is divided among the heirs in equal shares. Your son has the right to inherit equally with you.

We bought an apartment while married and got 1/2 share for each of us. The husband died. From his first marriage he has adult daughters, both retired. They want to inherit. Am I entitled as a spouse to his share? I am 83 years old. What will happen to me?

You will not be able to separate your marital share from your spouse’s share, since you are the owner of half of the apartment. Your share is your personal property and will not be included in the inheritance mass. If your spouse did not leave a will, you and the daughters of the deceased are called upon to inherit. Half of the apartment (1/2 share that belonged to the deceased spouse) will be divided in equal shares between you - 1/6 each.

My husband and I are divorced. Can he give up his share in the apartment in my favor, with compensation being paid to him? How to do this so that the deal is not challenged in the future?

If there are no disagreements, you can draw up an agreement on the division of property with monetary compensation. The document is subject to mandatory notarization. If the agreement is drawn up correctly, it is very difficult to challenge it.

Inheritance rights of stepsons and stepdaughters

Blood children are considered 1st line heirs. They can count on the property of their mother on an equal basis with the father and parents of the deceased woman.

As for stepsons and stepdaughters, i.e. children of one of the spouses, they are legally classified as heirs of the 7th stage. It is extremely rare for such persons to inherit their stepmother’s property. Usually there are closer relatives (spouse, parents/children, brothers/sisters, uncles/aunts).

You can change the order in the following ways:

1. Through adoption of children. If a minor was adopted by court decision, then he receives rights to inheritance equal to the rights of a natural child.
2. With the help of a will. The presence of an administrative document can completely eliminate one or more heirs from the property and give priority in inheritance even to stepchildren.
3. If the stepson/stepdaughter is recognized as dependents. In fact, this option is quite common. If a minor child lives together with a stepmother, he will be included in the heirs as a dependent. If the notary refuses inclusion, then it is necessary to go to court and establish the fact of being a dependent in court. An adult stepson/stepdaughter has the right to a share in the property as a dependent only if they prove incapacity for work and cohabitation for 1 year.