Is the death compensation obtained in Ningbo marriage a common property?

If one party dies unfortunately due to traffic accident, work-related injury and so on during the marriage relationship, the close relatives will get a death compensation; if the spouse of the injured party subsequently files for divorce (or the spouse himself suffers from a change and gets a divorce after compensation), will this money be counted as the common property of the husband and wife, or should it be divided? First of all, the conclusion is that the death compensation is the compensation for the decrease of living resources and mental damage caused by the death of the close relatives of the deceased. The subject of the right is the close relatives rather than the deceased himself. It is neither an inheritance nor the joint property of the deceased and his spouse. In principle, the share of death compensation obtained by one spouse in marriage belongs to his or her personal property, in the event of divorce, the other party cannot claim division according to common property-but the proof and nature of the judgment will become complicated after the compensation is mixed with family funds, or used to purchase real estate and other forms of transformation.

The legal nature of 1. death compensation: personal exclusive compensation

Article one thousand one hundred and seventy-nine of the the People's Republic of China Civil Code stipulates that those who infringe upon others and cause personal injury shall be compensated for the reasonable expenses for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospitalization food subsidies, etc., as well as the reduced income due to work delay; if death is caused, the funeral expenses and death compensation shall also be compensated. Death compensation is in nature to fill the loss of future income and living resources and mental damage caused by the death of the deceased's close relatives, and the subject of its claim is "the close relatives of the deceased"-spouse, parents, children, etc.-rather than the deceased himself. Because the subject of the right is not the deceased, the death compensation is not the estate of the deceased, the rules of inheritance do not apply. This nature judgment is the logical starting point of the whole problem: the common property such as wages and investment income listed in article 1062 of the civil code are all characterized by "obtaining + property income during the existence of the marriage relationship", while the personal dependence of death compensation makes it fall into the category of "other property that should belong to one party" in item 5 of article 1063.

Ningbo Intermediate People's Court "According to the case" "Divorced, how to calculate the" account "?" "(2014-08-05) There was a similar caliber: the personal insurance claim is personal property because of personal dependence, but the insurance premium insured by the family during the marriage is common property. Death compensation and life insurance claims belong to the same amount of personal dependence, Ningbo court in the divorce division generally according to personal property treatment-capital contribution (insurance) and compensation (claims) structure is different, the nature of the property is different. By the same token, funeral expenses are earmarked for funeral matters, and the living expenses of the dependants belong exclusively to the specific dependants and are not divided as joint property of husband and wife.

Distinction between 2. and inheritance, pension and insurance

put several types of money that are easy to confuse together to compare, and the boundary is clearer:

1. Legacy: The personal legal property left by the deceased before his death is distributed among the heirs according to the will or legal inheritance. If the inheritance occurs in marriage and the will does not belong to only one party clearly, the inheritance income generally belongs to the joint property of husband and wife (Article 1062 of the Civil Code); Death compensation is not an estate and does not participate in inheritance distribution.
2. pension: the living allowance provided by the state to the survivors of the deceased, which is distributed to eligible survivors (such as parents with no ability to work, minor children and spouses without work), belongs to the survivors and is not divided into common property.
3. personal insurance: if the beneficiary is designated, the insurance money belongs to the beneficiary, which is neither the estate nor the joint property of the husband and wife of the insured; if the beneficiary is not designated or the beneficiary is not designated and can not be determined, the insurance money will be treated as the estate of the insured (Article 42 of the the People's Republic of China Insurance Law), and the inheritance rules will be followed at this time.
4. the dependant's living expenses: the exclusive part of the death compensation that clearly belongs to the dependant belongs exclusively to the dependant, and does not participate in the distribution among other close relatives; this part should be stripped first, and then the balance should be determined.

3. Rules for distribution among close relatives

The distribution of death compensation among close relatives is usually determined by referring to factors such as the closeness of living with the deceased, the degree of economic dependence, and the source of livelihood, rather than simply dividing equally according to the share of inheritance. Spouses, children, and parents are all common subjects of rights, but their respective shares are not necessarily equal: the spouse who lives with the deceased and is financially dependent on the deceased usually has a larger share; adult and financially independent children have a relatively small share. The practical operation sequence is suggested as follows: the first step is to strip off the exclusive part (funeral expenses, living expenses of dependants); The second step is to negotiate the balance distribution ratio by close relatives. If the third step fails to negotiate, the court shall be requested to decide on the above factors. If close relatives reach a consensus, they can sign a written distribution agreement and specify each person's share. As long as it does not damage the basic living security of minors and those who lack labor ability, the law generally respects the parties' independent arrangements. Guardians shall separately manage the shares involving minor children and use them for their life, education and medical treatment, and shall not be used for other purposes; if other close relatives find improper punishment, they may raise objections and request correction in accordance with the law.

4. Divorce Division Perspective: Personal Property and Mix-up Risk

Back to the scene of divorce, the share of death compensation obtained by one spouse in marriage belongs to his or her personal property in principle, and the other spouse cannot claim to divide it when divorcing-this is completely different from the treatment of post-marital income such as salary and business income. Disputes mostly occur in two places: first, the compensation is mixed with the joint property of the husband and wife after it arrives, for example, it is deposited into the joint account of the husband and wife, mixed with the family deposit and used for joint expenses, which cannot be distinguished for a long time, and the other party may claim that part of it belongs to the common property; Second, after the compensation is used to purchase real estate, vehicles and other assets, the property rights are registered in the name of both parties or the source of funds are difficult to trace, mixed transformation makes personal property attributes blurred. Therefore, the first action after the compensation is paid is not distribution, but isolation: deposit into a separate account, retain the compensation agreement or the effective judgment document and receipt voucher, and specify the purpose and nature of the transfer note when it needs to be used. If it is necessary to use the compensation for common household expenses, it is best to keep a written statement to clarify the source and nature of the money and avoid being claimed as a general input to the family in the future.

(Example, Fictitious) Liu Mou, a resident of Ningbo, died in a traffic accident. After the lawsuit, he received compensation for death and compensation for mental damage of 1.2 million yuan. After deducting the funeral expenses and the living expenses of the dependents, the balance will be distributed proportionally between his spouse and his parents through negotiation. After the spouse gets 500000 yuan, it is deposited into the joint account of the husband and wife. After two years of divorce, the other party claims that the income of the 500000 yuan should be divided together. The court found that the death compensation metal personal exclusive property compensation, the spouse's share is personal property, but which is mixed with the family's common deposit consumption, can not distinguish the source of the part, need to combine the flow and use of specific judgment-can prove the source according to personal property treatment, can not prove the passive. This example shows that isolation and retention are more important than compensation itself.

5. common mistakes

• Myth 1: The money you get in marriage is common. positive solution: compensation with personal attributes (death compensation, personal injury compensation, insurance claims, etc.) is personal property, not of course shared.
• Misunderstanding 2: Death compensation is an inheritance, which can be divided according to inheritance. positive solution: death compensation is the compensation for close relatives, not the estate of the deceased. the distribution rules are different from inheritance, so they can't be treated in the same way.
• Myth 3: I can share half of the compensation my spouse gets. positive solution: in principle, the death compensation share has the personal exclusive attribute; unless it is mixed, transformed into common property or otherwise agreed.
• Misunderstanding 4: How to divide the compensation can be discussed by family members.Correct answer: Shares involving minor children shall be given priority protection; guardians may not dispose of them at will, and other close relatives may raise objections in accordance with the law.
• Misunderstanding 5: Depositing compensation into a common account is equivalent to agreeing to a common. positive solution: simply depositing into the joint account does not change the nature of course, but it will be difficult to distinguish after mixed consumption, so the certificate should be stored and kept independently; if the registration or agreement is clearly shared, it is another matter.

6. Litigation pathways and checklist of materials for death compensation disputes

If close relatives cannot negotiate on the division of death compensation, they can appeal to the court for handling. The cause of the case is usually a dispute over the division of common property, which is under the jurisdiction of the basic people's court in the place where the defendant's domicile or main property is located; if the guardian disposes of the share of minor children without authorization and refuses to distribute the legal share, he can claim it together. The prosecution materials are prepared in five groups: the first group of accident and compensation evidence-accident identification certificate, death certificate, compensation agreement or effective judgment document, indicating the compensation items and total amount; The second group of kinship evidence-residence booklet, marriage certificate and kinship certificate to determine the scope of the subject of rights; The third group of exclusive part of the evidence-funeral expenses bill, dependent identity and maintenance relationship certificate (used to separate the exclusive part); the fourth group of evidence of the flow of funds-the flow of compensation collection accounts, distribution and transfer records, to prove whether the current situation of the funds is mixed. There are three points in the litigation strategy: first, the funeral expenses and the living expenses of the dependents should be separated first, and then the balance should be distributed to avoid "dividing" the exclusive part equally; Second, for the party who advocates multiple points, the focus of proof is on the closeness of living with the deceased and economic dependence (living together, supported/raised facts, income dependence), rather than the general requirement of average; Third, involving the share of minor children, the court will give priority to protection, the guardian's punishment must be limited to the interests of the children, and other close relatives may object to improper punishment. Those who can negotiate still suggest priority negotiation or mediation-the parties involved in death compensation disputes are all close relatives of the deceased, and litigation often only escalates the contradiction. Ningbo court's pre-litigation mediation and "shared court" channels can first fix differences and facilitate plans.

7. FAQ

Can death compensation and inheritance be handled together?

should not be confused. The nature of the two is different: the inheritance is distributed according to the rules of inheritance, and the death compensation is determined among the close relatives according to the degree of closeness of the deceased's life and the degree of economic dependence. In practice, the scope should be clarified separately, and then dealt with separately, so as to prevent the equal distribution of compensation as the estate, or the distribution of the estate as compensation according to "care.

If the spouse receives the death compensation but refuses to distribute it to the in-laws, what can the in-laws do?

As close relatives, in-laws are the subject of the right to compensation, and they can negotiate first, and if they fail to negotiate, they can sue for division of their due share on the grounds of disputes over division of common property or unjust enrichment; the relationship between the proof and the deceased's common life and support dependence in litigation.

The compensation has been bought and the house is registered in the name of both husband and wife. How will the divorce be divided?

The property registered in the names of both parties is generally regarded as common property, and the party who claims to contribute with personal compensation must prove the source of funds (compensation agreement, transfer flow, purchase payment certificate), and the court may decide the division ratio according to the contribution of the contribution; if it cannot be proved, it shall be divided according to the common property.

Is it the same for industrial injury death compensation?

According to the relevant provisions of the Regulations on Work-related Injury Insurance, if an employee dies due to work, the close relatives can receive funeral subsidy, dependent relatives pension and one-time work death subsidy. Funeral benefits and dependent relatives' pensions are earmarked for specific purposes and for specific objects, and the one-time work-related benefits are distributed among close relatives by reference to the nature of death compensation, and are also not treated as joint property of the spouses.

Are mental damage compensation and death compensation of the same nature?

Close but slightly different. Mental damage comfort money is to comfort the mental pain of close relatives, personal specificity is stronger, generally directly attributed to the receiving close relatives of individuals; death compensation is both material compensation color. In practice, the two are often awarded together, and the distribution is usually treated according to the share of close relatives, and neither is divided into the common property of the husband and wife.

8. Lawyer's Practical Insights

Many people take the money they get in marriage as common property for granted, and death compensation is an exception. The subject of its rights is the close relatives themselves, with a strong identity specificity, in principle belongs to the personal property of the party who acquired the share, and the other party cannot claim division according to the common property in the event of divorce. Therefore, the first thing for the party receiving the compensation is to keep the compensation agreement, the composition of the payment and the record of receipt, and to distinguish which part is the death compensation, which part is the medical expenses, the living expenses of the dependents, etc., and not to mix it up.

The real problem is the "deformation" and mixing of this money. Once the compensation goes into the husband and wife's shared account, is used to repay the loan together or purchase the real estate with the names of the two people, the nature may be claimed to be transformed, and it will be more difficult to clarify the ownership in the future. From the experience of handling cases, the safest way is to let the compensation money be stored separately and kept in separate bookkeeping, and to leave a record of the purpose when it is used for common household expenses. If you use it to buy a house, the registration and capital contribution should be clear to avoid difficulties in proof caused by long-term mixing.

When negotiating, one party often uses "this money is also in marriage" as a test. You don't have to be emotionally entangled, just lay out the source and composition of the money and claim its personal specificity. If the other party insists on division, the dispute will be limited to the scope of "whether it is mixed and how much it is mixed", rather than fighting for the whole sum of money in general. What needs to be reminded is that the distribution of death compensation among close relatives may be controversial. If there are other rights holders in the family, it is best to negotiate the share internally before discussing the divorce property, so as not to be passive at both ends.

The essence of death compensation is "the money paid to the living", because of its personal exclusivity, it does not enter the inheritance, nor the joint property of husband and wife.For the subject of rights, the most important thing is three things: the compensation is isolated when it is received (independent account), the exclusive part is stripped first (funeral expenses, living expenses of dependants), and each movement is marked (transfer notes, written instructions). For the divorced spouse, the share of death compensation obtained by the other party cannot be divided in principle, but mixing and conversion will blur the nature of the money-instead of arguing about "whose money is" afterwards, it is better to draw a clear boundary at the moment of arrival.

also needs to prompt a detail of calculation and proof: the amount of death compensation is calculated by multiplying the per capita disposable income of urban residents in the previous year at the place where the court of appeal is located by 20 years (the age above 60 years old increases by one year, and the age above 75 years old is calculated by five years), and the specific amount is subject to the effective judgment or compensation agreement. If the compensation agreement does not itemize the composition, it is difficult to prove the exclusive share of the dependant's living expenses or to distinguish the attribution of moral damages, which is also the direct reason for the proposed itemization at the stage of the compensation agreement.