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Ningbo parents give real estate to their children. Does the spouse have a share?

Ningbo Author：LuXu WANG

After marriage, the parents transfer the property under their name to their children, does the spouse have a share? Conclusion First, the property donated after marriage belongs to the joint property of the husband and wife in principle, and the spouse has the right to claim it; but if the gift contract clearly stipulates that "only the gift is personally owned by one of their children and has nothing to do with their spouse", the property belongs to the personal property of the child and the spouse has no right to divide it. The key points are "whether the gift contract is directed" and "whether the evidence is retained. This article combines the Civil Code and related judicial interpretations to clarify the rules of whether parents give a house or a spouse.

1. legal basis: the watershed of the granted property

article 1062, paragraph 1, of the Civil Code: The following property acquired by the husband and wife during the marriage shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife-item (IV) of which is "property inherited or donated, except as provided for in paragraph 3 of Article 1063 of this Law". Article 1063 provides that the following property is the personal property of one of the spouses, the first (III) of which is "the property determined in the will or contract of gift to belong only to one party". The two together are the rules themselves-the property donated after marriage is presumed to be common, and the gift contract states that "only to one child" can exclude the spouse. Husband and wife have equal rights to deal with the common property, but the spouse has no right of course to the property "targeted gift" to one of the parties.

Dismantling of the elements: first, the time of donation must be during the marriage relationship, and the property donated before marriage is personal property (premarital property); The second is the directional agreement, which clearly excludes the donee's spouse in the gift contract, gift agreement or will-oral "I want to give my son a person in my heart" does not count, and must have a written statement that can be proved; Third, form and proof, the meaning of orientation must be able to prove-written gift contract is the safest, oral agreement or WeChat chat is weak, it is difficult to believe after entering the lawsuit. In addition to the gift contract, the husband and wife may also agree in writing that the property is owned by one party in accordance with article 1065 of the Civil Code, which can also achieve the purpose of excluding the spouse.

Breakdown of 2. situations: different ways of giving rooms, different conclusions

scenario 1: The parents directly sign a written gift contract, stating that "only one of their children is personally owned, not related to their spouse", and handle the transfer. According to Article 1063, Item (III), the property is the personal property of the children and the spouses have no right to divide it in the event of divorce-this is the cleanest and most recommended path.

Case 2: Parents verbally say "the house is for their son/daughter", or only mention it in WeChat, and transfer the ownership without signing a written orientation agreement. Although there is a fact of donation, there is no clear agreement on "only one party". Generally, it is recognized as the joint property of husband and wife according to Article 1062, and the spouse may claim the share.

Case 3: It is called a sale, but it is actually a gift. Parents transfer in the form of "sale" but do not actually collect money-if the funds flow, the real payment can not be confirmed, the court may determine that it is a gift.

Scenario 4: Parents contribute to the purchase of a married child (not a gift of their own property). Different from direct donation of real estate, article 8 of the (II) is interpreted according to the marriage and family compilation: during the duration of the marriage relationship, one parent shall fully contribute to the purchase of the house by the husband and wife, and the donation contract clearly stipulates that only one party giving the house to their children shall be handled according to the agreement; If there is no agreement or the agreement is unclear, the court may decide that the house belongs to the investor's children when the house is divided after divorce, compensation is then determined by taking into account factors such as living together, having children, fault, contribution and market price-if part of the contribution or the contribution of both parents, on the basis of the source and proportion of the contribution, the house is decided to be returned to one party and the other party shall be reasonably compensated by the owner. In other words, the two paths of parents "paying for a house" and "transferring their house to their children" have different attribution results when there is no directional agreement, and should be treated differently.

The Revocation of 3. Gift and the Choice of Notarization

A gift contract is a single, pro bono contract. Article 658 of the Civil Code stipulates that the donor may revoke the gift before the transfer of the right to the gift property, and the provisions of the preceding paragraph shall not apply to the notarized gift contract or the gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled that cannot be revoked according to law. For parents, after the transfer of the property (the transfer of rights is completed), the right of arbitrary revocation will be eliminated, but if the child seriously infringes the rights and interests of the parents, fails to perform the maintenance obligations or refuses to perform the obligations stipulated in the gift contract, the parents may still exercise the legal right of revocation within one year from the date of knowing the cause of revocation in accordance with Article 663. For directional protection, the value of notarization of the gift contract lies in the fact that the notarization document has a strong probative force on the meaning of "only the child's party", while blocking the arbitrary revocation before the transfer, and facilitating the subsequent transfer of real estate-ningbo notary institutions can handle it.

Do 4. need to sign a gift agreement: the conclusion is "must"

whether a written gift agreement is required, the answer is yes-especially if the child is married. There are three reasons: first, they do not sign an agreement, only communicate orally or via WeChat. Once divorce proceedings, the parents' inner meaning of "only wanting to give their children" cannot be accepted by the judge, and the real estate is likely to be divided according to common property; Second, the written agreement is direct evidence that item (III) of article 1063 "the gift contract is determined to belong to only one party, it is best to state the real estate ownership certificate number, gift object, exclusion of spouse's clear statement and signature. In addition to notarization, WeChat can also be used to leave marks (key expressions in words), e-mail or express to retain documents, invite witnesses to sign and other ways to strengthen, but are not as stable as written agreements + notarization. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence have many defects in proof and are difficult to accept in divorce cases-the key meaning is to suggest that it should be written as much as possible.

5. Evidence and Operational Checklist

  1. A written gift agreement-stating that "the gift is personally owned only by one of the children and has nothing to do with his or her spouse", signed by both parties;
  2. gift contract notarial certificate (optional, large real estate recommended);
  3. property ownership certificate, proof of kinship (residence booklet, birth certificate, etc.), identity materials;
  4. if the use of the form of sale and purchase transfer: real funds flow vouchers, to avoid "the name of the sale is a gift" of the determination and tax disputes;
  5. deed tax and other tax payment vouchers and transfer registration materials.

Tax comparison between 6. sale and gift and consideration of transfer cost

parents give married children real estate, choose "buy and sell" or "gift" transfer, tax burden and risk difference should be calculated. Donation path: according to No.78 [2009] of finance and taxation, if the owner of the house gives the house property to his spouse, parents, children, grandparents, grandchildren, grandchildren, brothers and sisters free of charge, no personal income tax shall be levied on both parties concerned; however, when the donee sells the house again in the future, the personal income tax shall be levied according to the income from property transfer, due to the grant to obtain no original purchase cost deduction (tax basis to the approved value at the time of the grant, etc.), the resale tax burden may be significantly higher-"gift province's current tax, may be more future tax".

Buying and selling path: according to the normal second-hand housing sales tax, eligible can enjoy value-added tax, tax concessions, but if the name of the sale, the actual gift and no real capital flow, the tax and judicial authorities may be identified as a gift-ownership qualitative return to "whether there is a directional agreement", but also may be recovered to pay the difference tax. Comprehensive suggestion: if the children have no sale plan in the short term and want to keep the certainty of "targeted gift", follow the "written targeted gift agreement + notarization + gift transfer"; If the tax burden of future sales is considered, the feasibility of "real sales + capital return arrangement" can be evaluated and tax professionals can be consulted. Do not make fake sales in order to save tax, resulting in both ownership and tax burden out of control. Notary fees are charged according to the amount of the subject matter, and notary fees for large properties are usually worth the cost of future disputes.

7. post-marital income and exchange disposal of donated property.

The property rights of the targeted donated property are preserved, and the subsequent income and exchange purchase may still lead to disputes: first, the rental income-the personal property donated before marriage or targeted, the rent generated by the rental after marriage, is generally recognized as the operating income in judicial practice, which belongs to the joint property of husband and wife according to Article 1062 of the Civil Code (Article 26 of the (I) of Interpretation: the income generated by the personal property of one spouse after marriage, except for fruits and natural appreciation, should be recognized as the joint property of husband and wife; Rent is usually classified as active operating income rather than interest)-"the house is personal property, rent is common property", and rent needs to be divided during divorce; Second, sale and purchase-after the sale of personal property, the house is purchased separately with the sale price. If it is registered in the name of the individual and can prove that the capital is fully converted from the sale price, the new house is still personal property in principle (personal property); if the name of the spouse is added, mixed with common funds or registered as common, it is converted to common property or shared according to the proportion of capital contribution-it is very important to retain the evidence of the "capital chain" at the time of purchase. The "property right" and "income" and "value-added" of the donated real estate are three levels, which are characterized and treated separately, so as to avoid dragging the whole individual real estate into the common property in general.

Reference to Class Cases: In the property dispute case after the divorce between Cheng and Mao, the defendant signed a gift contract with his son during the lawsuit and registered the transfer of the husband and wife's real estate to his son's name. The court found that he had the intention to transfer the property and confirmed that the real estate was still owned by the husband and wife, with the plaintiff enjoying 55% of the share. It can be seen that parents donate and transfer the property to their children. Whether the spouse has a share depends on whether it is clear that only one party is donated. If it is transferred secretly without the consent of the spouse, it may still be recognized as the joint property of the husband and wife. Trial Court: Case No. of Fenghua District People's Court of Ningbo City, Zhejiang Province:(2019) No. 4227, Minchu, 02

13City, Zhejiang Province

8. FAQ

after marriage, my parents transferred the house to me. Does my spouse have a share?

See if there is a "only one party" directional agreement: the gift contract clearly only to one of their children, is personal property, the spouse has no share.

Does the verbal "house only for the son" count?

It's hard to count. Directional meaning requires proof, oral or WeChat fragmented expression in the litigation to prove weak, it is recommended to sign a written gift agreement, if necessary notarized.

Is it a gift if you transfer the ownership in the form of sale but do not pay?

May be identified as the name of the sale is actually a gift, the ownership of the property still depends on whether there is a directional agreement.

Can parents go back to the house after the transfer?

After the transfer of ownership (transfer of rights), parents can no longer arbitrarily revoke in principle; the legal right of revocation can be exercised only in legal circumstances such as the child's serious infringement of the rights and interests of the parents and the failure to perform the maintenance obligations.

Parents pay to help us buy a house, is it the same as sending a house directly?

Not exactly the same. Item (III) of Article 1063 shall apply to the direct gift of self-owned real estate by parents; Article 8 of the Interpretation (II) applicable to the purchase of a house for a married child-if the capital contribution is made in full and there is no agreement, the court may order the house to be owned by the child of the investor; Part of the capital contribution shall be divided on the basis of the proportion of capital contribution. Both paths should attach importance to the "directional agreement".