The regulation of the rights of spouses falls under the jurisdiction of the Family Code of the Russian Federation. According to the provisions of Articles 34-35 of the RF IC, all property of a husband and wife acquired during their cohabitation in a registered marriage is considered common. Its division can occur in the event of divorce and after the death of one of the spouses.
These rules apply only to existing spouses. But in practice, it happens that ex-husbands or wives are called to inherit. An important question is being resolved: can an ex-wife claim her husband’s inheritance after his death, or can a husband claim his ex-wife’s inheritance? We'll look into it further.
Legal relations between former spouses in inheritance law
The marital relationship of the former spouses is terminated due to divorce. For this reason, they do not have any family or inheritance rights or obligations towards each other. It is assumed that after the divorce, all issues relating to common property are resolved between them, and there are no other relationships.
Art. 1142 of the Civil Code of the Russian Federation establishes the circle of heirs, the list of which does not include the ex-husband or wife. As a general rule, only spouses who were married before the opening of the inheritance have the right to inherit. In this case, the marriage must be registered.
When a marriage is dissolved by a court decision, when determining the circle of heirs, the court always proceeds from when the decision to dissolve the marriage came into force. If this happened before the opening day of the inheritance, such spouse will not receive the inheritance. The one whose marriage was declared invalid in court will not receive the inheritance of the former spouse, regardless of the reason.
In the practice of notaries, there are cases when one of the spouses entered into marriage for the second time without dissolving the first. Then, after the death of the spouse, a situation may arise when both wives come to the notary to receive their husband’s inheritance.
In this case, the notary does not decide which of the two marriages is invalid, but suggests going to court. In court, each of the ex-wives will prove their good faith and right to inheritance.
In what case does the ex-spouse become an heir to property?
Art. 34 of the Family Code of the Russian Federation establishes the regime of common joint ownership of spouses for property that they received or acquired during the period of cohabitation in a registered marriage. All things, real estate or cars that appeared during marriage are considered common, and both spouses have rights to them.
But there is property acquired during marriage that will remain the property of each spouse. This includes personal belongings - clothing, shoes, hygiene items, with the exception of jewelry and other luxury items.
In the event of divorce or after the death of one of the spouses, all joint property is subject to division . The surviving spouse has the right to inherit first, but only if at the time of opening the inheritance he was married to the testator.
Otherwise, the former spouse does not inherit. But in Art. 1119 and 1148 of the Civil Code of the Russian Federation establish exceptions to this rule:
- Art. 1119 of the Civil Code of the Russian Federation makes it possible to bequeath property to any person. A testator can pass on his or her inheritance by expressly naming his or her ex-wife or husband as heir in the will.
- If the former spouse is a pensioner or disabled person, was dependent on his spouse and lived with him for at least one year, then at the time of his death he is called upon to inherit as a compulsory heir.
If, after a divorce, the testator’s minor children remain in the care of the ex-wife, then she receives the right to dispose of the inherited property without becoming an heir.
Half of the inherited property after the death of the former spouse can be inherited if the common property was not legally divided during divorce. Then, after the death of one of the spouses, the inherited property is subject to division in favor of the former spouse.
Law enforcement practice knows cases (Definition of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 26, 2017 N 18-КГ17-217, Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 09/05/2017 N 4-КГ17-36) when the ex-husband died , and the inheritance is almost divided among his children.
His ex-wife, from whom he was divorced in recent years before his death, becomes aware of the opening of the inheritance, and demands that half of the jointly acquired property be returned to her on the grounds that after the divorce, the joint property was not divided between them. Does the ex-wife have the right to inheritance after the death of her husband in this case?
On the one hand, no, it doesn’t, since she was not married at the time of her death. But on the other hand, the fate of the property they acquired during marriage was not legally decided between the spouses. The court satisfied the request. But in this case, the wife was not an heir and did not receive half of the property as an inheritance. Half of the property of her former deceased husband was transferred to her by court as part of the jointly acquired property, which is supposed to be given to the wife upon divorce.
Features of a spouse's rights in inheritance
The specifics of a spouse's rights in inheritance arise from the property regime in force during the marriage and during the lifetime of both spouses. Thus, the current legal framework provides for two types of regimes:
- negotiated;
- law.
So, in the first case, the property agreement concluded by the spouses during the lifetime of both determines which of the spouses has the right of ownership and to what property, which makes it possible to determine the complex of property for which an inheritance is opened after the death of one of the spouses.
In the second case, the spouses have equal rights to property acquired as property and other property rights during their married life. The inheritance is opened only for the share of the deceased, which has yet to be allocated.
What can prevent you from inheriting
According to the will, the testator can transfer all his property not only to his ex-husband or wife, but also to any person. But Art. 1149 of the Civil Code of the Russian Federation protects the rights of those people who are socially weakly protected. These include minor children and disabled dependents. These are obligatory heirs, since in any will they are supposed to allocate a share in the inheritance.
Therefore, if there is a will, obligatory heirs can prevent the inheritance from being fully received. The former spouse will be able to receive the bequeathed property only after allocating from it that part of the inheritance that belongs to the obligatory heirs - children, disabled dependents of the testator.
The disabled former spouse of the testator can receive an inheritance only if all requirements are proven in court. Pensioners and disabled people of groups 1, 2, 3 are considered disabled.
Being dependent for them means:
- receive regular financial assistance from your ex-husband or wife;
- has been dependent on the former spouse for at least one year;
- live with him for at least one year.
This rule applies not only to former spouses, but also to those who cohabited with the testator in an unregistered marriage.
But attempts to prove the fact of being a dependent in most cases do not bring results. This is due to the fact that the concept of “being a dependent” in the law does not have clear criteria. What exactly is the regularity of material assistance and what size it must be in order to be recognized as such is unknown.
Important! Irregular and small amounts of money are not considered dependent. Also, those who have their own salary or pension are not recognized as dependents.
In the event of a failed division of property after a divorce, a circumstance that may prevent receiving an inheritance is a missed deadline for going to court. The ex-wife has the right to file a claim in court for the division of property within three years.
The countdown begins not from the date of divorce, but from the moment when the ex-wife learned that she did not receive the property due to her after the divorce. If this deadline is missed, then it is no longer possible to claim the property of the ex-husband.
Recognition in court of a former spouse as an unworthy heir also deprives him of the right to claim inheritance by law and by will.
Right to inheritance under a will
Based on Art. 1119 of the Civil Code of the Russian Federation, a citizen has the right to dispose of the property belonging to him at will, including making a will in favor of one or more persons, even if they are not considered his relatives.
In this case, there are no obstacles to obtaining the property of the former spouse.
In order to avoid disputes regarding the will with other claimants to the inheritance, the document must meet the following requirements:
- drawn up in writing;
- the date and place of its preparation is indicated;
- write down complete information about the testator and heirs;
- The testator and the notary are signed. In some situations (you can find out about them here ), instead of a notary, another authorized person can certify the will with a signature - the chief physician of the hospital, the commander of a military unit and other persons;
- at the time of signing, the testator must be fully aware of his actions;
- Physical or psychological pressure on the property owner when drawing up a will is unacceptable.
If such requirements are not met, the contents of the testamentary document can be appealed in court.
An ex-wife or husband has the right to receive an inheritance from a deceased spouse if this is provided for in the provisions of the will.
The procedure for inheriting from an ex-husband or wife
To accept an inheritance, you must submit an application to a notary within six months after the death of the testator. You need to contact a specialist who is located at the last known place of residence of the testator.
You can submit your application in person or by mail. But when sending an application by mail, the sender’s signature must be notarized. It is also possible to submit an application by proxy. The main thing is that it contains all the required powers to submit an application and obtain a certificate.
Within six months from the date of death of the previous owner, the successors must formalize the rights to his property.
Important! If you apply after the end of the six-month period, you will have to prove your right to inheritance in court.
The application is made in writing. Usually it is drawn up by notaries or their assistants.
The application contains the following information:
- Full name of the heir;
- Full name of the testator, his last place of residence and date of death;
- on what basis is property inherited;
- consent to accept property as inheritance;
- degree of relationship with the testator;
- Full name and place of residence of other heirs - if known;
- list of property, if known.
The applicant provides the notary with a passport and documents:
- death certificate or court decision;
- certificate of residence of the testator;
- documents establishing the fact of relationship between the applicant and the testator;
- documents about property, if the applicant has them - acts, contracts, certificates of ownership, extracts from the Unified State Register of Real Estate, technical passports of an apartment, house, etc.
After submitting the application, the notary checks all information. Makes inquiries, clarifies the number of heirs and takes other measures to open the inheritance. Then he prepares certificates of inheritance and issues them to the heirs.
Recognition of the right of a spouse during inheritance
Recognition of the rights of a spouse to the property of the deceased spouse does not depend on the opinion of other heirs. The latter has the rights both to allocate his share and to a share in the opened inheritance.
This right can be limited only if there was a written expressed will of the deceased regarding his property, when the deceased excluded the spouse from the list of heirs, and there are no grounds for recognizing the latter as an obligatory heir, or by a court decision the spouse was recognized as an unworthy heir.
But in this case we are talking only about property from which everyone’s marital share has already been allocated and to which the living spouse claims unconditionally by virtue of the law.
Debt obligations of ex-husbands or wives
The jointly acquired property of spouses includes their common debts. If the ex-husband or wife inherits, these unpaid debts, along with the property, will pass to the heir.
If the issue of division of debts is resolved during the life of the testator during the divorce process, you can try to challenge the amount of the debt. But in the case when they are inherited, this will not work.
The inheritance is supposed to be accepted in full, without conditions or reservations . Each heir, including the former spouse, will receive an obligation to repay the debt in an amount proportional to his share of the inheritance.
Rights of inherited property after the death of a spouse
After death, an inheritance is opened on a person’s property, which was his property, and heirs are called to inherit in the order of priority determined by the Civil Code of the Russian Federation, or in accordance with the will of the deceased, if such was drawn up in writing at a notary’s office.
The first case applies equally to the spouse of the deceased, relatives, adopted children, mother, father, adoptive parent. They have the same rights to inheritance and their shares will be equal.
The will independently provides for the future fate of the property, the circle of persons and their shares in it. It is possible that the heirs of the first stage will be left without shares at all, except for the obligatory one, if the deceased wanted this during his lifetime.
Dates and place of opening of inheritance
Opening an inheritance case is carried out in two ways: notarially and virtually. The actual entry does not require an application to a notary, but the receiver must perform certain actions in relation to the inheritance. The fact of acceptance of property can be established by the following actions:
- Bearing expenses for the obligations of the deceased.
- Ensuring the protection and safety of property.
- Maintenance of property and its use for personal purposes.
- Investment of personal funds into property, its repair, improvement.
The second way to open an inheritance is to contact a notary’s office, which is geographically related to the location of the inherited property (the largest of it) or to the place of the testator’s last residence.
To present your rights to join, you must draw up an application for acceptance of inheritance. You can do this in several ways:
- Contact a notary in person and write a document.
- Write an application to any notary and send a certified copy by mail to the required specialist.
- Transfer the right to register entry to your representative: legal or by proxy.
It is necessary to demonstrate the actual entry or registration with a notary within the time limits established by law.
Based on Article 1154 of the Civil Code of the Russian Federation, the period for entering into inheritance is limited to six months. The countdown of this period begins from the date of death of the testator.
What rights does a common-law husband have?
Inheriting a wife's property acquired in a civil marriage is a rather complicated procedure. Cohabitation does not give rise to any obligations and rights between the couple, in particular in the matter of inheritance. Therefore, if the wife dies, the common-law husband has no right to claim her property.
But there are exceptions to this rule. A spouse has the right to inherit property from his common-law wife only in two cases:
- If a will has been drawn up in which the husband's name is indicated.
- If the husband proves that he was dependent on the woman, namely, he lived with her for over a year and was on her full financial support.
If, during their cohabitation, illegitimate spouses acquired movable property for common money, then it is impossible to resolve the issue of who should get it. In this case, the husband, together with the relatives of the deceased, resolves this situation.
When both spouses became heirs
Sometimes there are situations where both spouses become heirs. For example, if they inherited the property of their children by legal order or they were both named in the will.
When inheriting by law, each spouse is entitled to equal shares in the inheritance. In a will, the distribution of shares between spouses can be arbitrary.
The share of each party will remain indivisible and will be assigned to them after the divorce process, i.e. they will retain the inherited property.
Rules for dividing property during divorce
Many couples who are on the verge of divorce are well aware that all property, real estate and other property that they acquired during their marriage must be divided in equal parts.
The situation seems especially unfair to the husband, who invested all his savings in buying an apartment, and the wife, by law, has the right to half of the housing, although she did not contribute even a ruble. But the law interprets this situation unambiguously: since the apartment was purchased during marriage, it is divided in equal parts. Very rarely does the court go to review the principle of equality of shares.
