Spousal share in the inheritance by law after the death of the spouse: allocation and renunciation of the spousal share in the inheritance

What is the spousal share of the inheritance?

The marital share is a part in the joint property of the spouses, which is not subject to inclusion in the inheritance mass, since it is the property of the surviving spouse (Article 1150 of the Civil Code of the Russian Federation).

For clarity, let’s look at an example: Polina and Igor bought an apartment while married. They do not have a prenuptial agreement or an apartment division agreement. According to the law, each of them has the right to ½ part of the apartment. In the event of Polina's death, Igor continues to be the owner of his share. And part of Polina is her inheritance.

But let’s imagine that the apartment was registered in Rosreestr only in Polina’s name. Let's assume that Igor could not attend the state registration of the purchase. This means that according to the documents the apartment belongs to Polina, but according to the law it is joint property.

To prevent the notary from including the part belonging to Igor in Polina’s inheritance, Igor must allocate the marital share. Otherwise, it will become part of the hereditary mass.

As can be seen from the example, the allocation of the marital share is an important procedure. Failure to comply will result in the surviving spouse being illegally deprived of his property.

Allocation of the marital share is an independent procedure. The surviving spouse, after receiving a certificate of allocation of the marital share, may well claim his share of the deceased’s inheritance.

But it does not equate to accepting an inheritance. If the deceased had personal debts, then creditors cannot make claims against the spouse based on the fact that she allocated her share. Debts will be repaid from the personal property of the deceased.

Personal property

The personal property of the deceased includes:

Premarital property. These are all objects of property, including funds in accounts that the deceased owned before marriage.
Property received under a gift agreement. Any property officially received through a deed of gift registered in the name of one of the spouses is personal.
Property received as an inheritance.
Property transferred into ownership through gratuitous transactions. Privatization is a free-of-charge transaction. It must be remembered that winning the lottery is not a free transaction. Therefore, the winning amount is joint property.
Personal items. Excluding jewelry purchased during marriage, luxury items (fur coats, furs, antiques).

The listed property is included in the inheritance mass in full. The marital share is not allocated from it.

Joint ownership

Joint property of spouses includes:

income from work, from business activities, from intellectual work;
social payments that do not have a specific purpose (pensions, benefits);
property purchased with common money or on credit;
deposits in banks.

It does not matter which of the spouses the deposit is opened or the property is registered in. It is still considered joint.

The exception is the situation when the husband and wife have signed a marriage contract. In this case, the division occurs in accordance with the terms of the contract. It is he who determines which property will be considered personal and which – joint.

In the event of the death of one of the spouses, the joint property is subject to division into the marital share and the inheritance of the deceased.

What is a marriage contract

According to the law, marital property is divided in half only if a marriage contract was not concluded between them, which stipulated other options for dividing property.

A prenuptial agreement is essentially a marital contract that stipulates the property rights and obligations between husband and wife. Spouses can enter into this type of agreement from the day they submit an application to the registry office and at any time before the divorce. A contract concluded before the wedding comes into force only from the moment the relationship is officially registered. Most often, a marriage contract is concluded by citizens who are in the process of dissolving a marriage.

A marriage contract allows you to avoid long litigation and conflicts in the process of dividing property. The agreement may stipulate the regime of separate ownership of registered movable and immovable property. This form of ownership is beneficial to persons who are remarried and have children of their own. In the event of the death of their parent, children will not be able to claim the home and other types of property of the second spouse.

A marriage contract is only valid if it is notarized. Oral agreements have no force. The terms of the contract can be changed as long as the spouses are married.

Allocation of the marital share after the death of the husband

The law does not provide for the possibility of automatic allocation of the marital share.
Therefore, the procedure is possible only upon application from interested parties. The following selection options are available:

through a notary;
through the court.

Let's take a closer look.

Through a notary

Only the surviving spouse can contact a notary. Moreover, it does not matter whether he is included in the heirs or not.

Also, the former spouse of the deceased has the right to allocation if, after the divorce, the couple did not divide the jointly acquired property. In this case, you must additionally present a divorce certificate.

To select you need:

Contact the notary office at the place of last registration of the deceased to open an inheritance. To do this, you need to submit a death certificate, a certificate of the last place of registration and an application for opening an inheritance case. The application must be submitted within 6 months from the date of death of the deceased spouse.
Prepare documents for property acquired during marriage. It is necessary to prepare a marriage certificate, title documents for all joint property of the spouses and extracts from the Unified State Register of Real Estate for real estate.
Draw up an application for the allocation of the marital share and conduct an assessment of the inherited property.
Pay the fee. The procedure for allocating a marital share is not free. In 2021 in Moscow, the applicant will have to pay from 500 to 4,000 rubles. Payment is not collected when allocating part of a pension, salary, benefits in a total amount of up to 10,000 rubles. You can check prices in other regions on the FNP website.
Get a certificate. Based on the results of the application, the notary issues a certificate. This is not the same document as a certificate of inheritance rights. But on its basis, the spouse can contact the authorized body and re-register the property in his name.
Transfer property to yourself. If the spouse is included in the will or the inheritance takes place according to law, then it is advisable to delay re-registration of the property. Once a certificate of inheritance rights is received, it will be possible to combine the shares and re-register them jointly.

Reference! At the request of the surviving spouse, the notary can independently transfer documents for re-registration of real estate to Rosreestr.

Sample application

An application to a notary for the allocation of a marital share must contain the following information:

name of the notary office;
applicant details;
document's name;
information about the death of the deceased spouse (details of the death certificate);
information about marriage or divorce (details of relevant certificates);
information about joint property (details of title documents);
request for the allocation of a spousal share;
list of attached documents;
date, signature.

Sample application

Through the court

The allocation of the marital share in court occurs in the following cases:

the surviving spouse wants to allocate more than ½ to himself;
the surviving spouse did not apply for the allocation of the marital share before the expiration of 6 months from the date of death of the deceased;
the property is registered in the name of the surviving spouse, and the heirs or creditors want to include the spousal share of the deceased in the estate.

Applicants in the process may be:

surviving spouse;
other heirs;
creditor.

The separation procedure through the court includes:

Collection of documents. The applicant must prepare a civil passport, title documents, marriage/divorce certificate, loan documents, fee receipt, death certificate.
Preparing a claim. The plaintiff must prepare several copies of the claim and documents (according to the number of parties to the case)
Payment of state duty. Requirements for the allocation of the marital share are property requirements. Therefore, the duty is calculated as for property claims (Part 1, Clause 1, Article 333.19 of the Tax Code of the Russian Federation).
Sending documents to court. The application must be sent to the district/city court at the defendant’s place of residence.
Trial. The process takes at least 2 months.
Obtaining a court decision. The court decision comes into force 30 days from the date of announcement.
Re-registration of ownership. If the claim is satisfied, the applicant does not need to contact a notary. Re-registration of documents is possible on the basis of a court decision that has entered into legal force.

The right to allocate the marital share through the court also remains with the former spouse, if after the divorce the division was not made. Moreover, there is no statute of limitations for such claims.

Example. Irina appealed to the court with a request to allocate a marital share from the inheritance of her late ex-husband. The woman explained that after the divorce they did not divide the property. But according to a verbal agreement, she kept the Mazda car, and her husband kept the KAMAZ. After the divorce, the man remarried. The ex-husband's wife claims all the property that was registered in his name. And both cars are registered in the State Traffic Safety Inspectorate to a man. The court satisfied the applicant's demands and allocated the marital share from the inheritance of the late ex-husband (Decision of the Krasnoyarsk District Court of the Samara Region dated August 29, 2017 in case No. 2-1658/2017).

Sample statement of claim

The statement of claim must include the following information:

name of the city/district court at the place of registration of the defendant;
applicant's details (full name, residential address, telephone number);
information about the defendant;
cost of claim;
amount of state duty;
name of the application;
data on marriage with the deceased indicating the details of the certificate;
information about the acquired property indicating the details of title documents;
information about his death (details of the death certificate);
request for the allocation of a spousal share;
list of attached documents;
date and signature.

Sample claim

Who has the right to inheritance after the death of one of the spouses?

How is the inheritance divided between the wife and children after the death of the husband and father?

Mandatory spousal share

In accordance with Art. 1149 of the Civil Code of the Russian Federation, in a number of cases, a spouse has the right to an obligatory share in the inheritance of the deceased spouse, even if the share is not provided for by the will.

A spouse is entitled to an obligatory share if:

has a disability;
has reached pre-retirement age (55 for women, 60 for men).

The obligatory share is at least ½ of the share that the spouse would have received if the inheritance had taken place by law.

At the same time, the right to an obligatory share does not intersect with the right to a spousal share. That is, a wife can contact a notary to allocate a marital share and claim a part in the inheritance of the late spouse in order to receive a mandatory share (even if the husband did not include it in the will).

Example. Maxim had a wife, daughter, mother and father. But the man made a will for the apartment in his mother’s name. The wife turned to a notary to allocate the marital share, since the apartment was purchased during marriage. She also demanded a mandatory share because she had a disability. If the inheritance took place according to the law, then she would receive ¼ of the inheritance, that is, 1/8 of the apartment. As a compulsory share, she received 1/16th share. That is, the woman became the owner of 9/16 shares of the apartment.

Allocation of a spouse's share in bankruptcy

As mentioned earlier, within the framework of the Code of Civil Procedure of the Russian Federation, the creditor has the right to appeal to the servant of Themis with a claim for the allocation of the debtor’s share in the common property. Creditors have similar rights in the context of a bankruptcy case being considered by an arbitration court. In accordance with the general rules provided for in paragraph 1 of Article 39 of the Civil Code of the Russian Federation, these shares are equal shares of the spouses. Except in cases of a marriage contract.

In addition, when considering the above-mentioned application, the court has the right to change the spouse’s share if such a change is necessary to protect the interests of minors (for example, children of bankrupts) and in other cases provided for by current legislation.

Refusal of spousal share

The owner has the right to refuse property that belonged to him by right of common joint ownership (Article 236 of the Civil Code of the Russian Federation). To renounce the marital share, you must submit a waiver application to a notary. In this case, the share will pass into the estate and will be divided along with the other property of the deceased.

Sample application

How to challenge a spousal share?

When the surviving spouse applies to a notary, by default ½ share in the joint property is allocated. But other heirs may not agree with such a division.

In order to increase the deceased’s share in the joint property of the spouses or to recognize the divided property as personal, it is necessary to go to court. The applicant in the process can only be an interested person (heir, creditor). The defendant is the surviving spouse.

In order for the court to satisfy the plaintiff's demands, it is necessary that he present irrefutable evidence that this property is the personal property of the deceased.

For example, it was purchased with donated money or personal funds of the deceased.

Types of marital property

When living together, a married couple usually runs a common household. The family budget is spent on purchasing:

real estate;
transport;
furnishings;
household appliances;
other things necessary for life;
jewelry and luxury attributes.

The law considers all of the above, as well as the monetary income and savings of a married couple (wages, social payments from the budget and the Pension Fund, royalties, bank deposits and deposits, shares, other financial assets) as acquired by the married couple. It does not matter which spouse was registered as the owner of the property.

In addition to common things, each married half has in its exclusive ownership items for individual use. These include everything that he had before registering the marriage relationship, plus material benefits received as a gift or inherited, being already a family member. Personal benefits include personal belongings purchased at the expense of the family budget, payments under insurance company policies, compensation, objects of copyright, and part of the living space privatized during the marriage in an apartment that is in shared ownership.

Types of marital property

jointly acquired property: all common household items, transport, real estate, money, jewelry, luxury items;
personal: personal items purchased from the general budget, inheritance received, gifts, compensation and insurance payments, privatized living space, everything that was owned by a man or woman before starting a family;
joint by court decision: personal property when it is repaired, restored, reconstructed during family relationships, resulting in significant expenses of the general budget.

The court may recognize part of the personal property of the deceased spouse as joint property. To do this, you will need to document significant expenses from the family budget for its repair, maintenance, and reconstruction. This usually applies to real estate and transport.