Insights

Ningbo unregistered marriage cohabiting men and women have no right of inheritance

Ningbo Author：LuXu WANG

Lao Zhang and Lao Li lived together for 20 years without marriage registration. After Lao Zhang died, Lao Li advocated to inherit the estate as a spouse, which was opposed by Lao Zhang's children. This kind of predicament—having lived together for half a lifetime only to be left with nothing, both in terms of people and property, after death—is not uncommon. Direct conclusion: cohabitation without marriage registration does not produce spouse status, and the cohabiting party has no legal inheritance right in principle; However, there are four ways out-those who meet the essential requirements of marriage before February 1, 1994 and live together in the name of husband and wife can be treated as de facto marriage and enjoy the right of spouse inheritance; If the heir makes a will or bequest, the cohabitant can obtain property according to the will; if the cohabitant has more support for the decedent or depends on him, he may receive an appropriate share of the estate in accordance with Article 1,191 of the Civil Code. The only fundamental solution for an unregistered cohabitant to obtain a "name" is to register his marriage or make a will.

1. Legal inheritance rights are contingent upon marriage registration.

Article 1,127 of the Civil Code stipulates that the first order of legal succession is spouse, children and parents. The term "spouse" here refers to a couple who has registered their marriage in accordance with the law (Article 1049: Both men and women who require marriage shall apply for marriage registration in person at the marriage registration authority; the marriage relationship shall be established upon completion of marriage registration). Cohabitation is not registered, does not produce the effect of marriage, cohabiting party does not belong to the legal heir, can not participate in the legal inheritance as a "spouse"-this is the general premise of cohabitation inheritance, no matter how many years of cohabitation, how deep feelings, as long as there is no registration, the door of legal inheritance is closed.

2. Exception 1: De facto marriage (before February 1, 1994)

de facto marriage is the only "window of time" exception. Article 7 of the interpretation (I) stipulates that men and women who live together in the name of husband and wife who have not registered for marriage in accordance with Article 1049 of the Civil Code shall be treated differently if they file a lawsuit for divorce: (I) before the promulgation and implementation of the regulations on the Administration of Marriage Registration of the Ministry of Civil Affairs on February 1, 1994, if both men and women have met the essential requirements of marriage, they shall be treated as de facto marriage. In other words, if you live together before February 1, 1994 and meet the substantive requirements of marriage (reaching the legal age of marriage, no kinship prohibiting marriage, no bigamy, etc.), the law recognizes the de facto marriage relationship, and after the death of one party, the other party can claim the legal inheritance right as a spouse.

Those who started cohabiting after February 1, 1994, no matter how many years they lived together, can no longer constitute a de facto marriage; if they meet the essential requirements of marriage, they can only establish the marriage relationship through post-registration, and the marriage effect of post-registration starts when both parties meet the essential requirements of marriage-that is to say, after ten years of cohabitation, the marriage relationship can be traced back to the date when the conditions meet, this is of great significance to the determination of the right of inheritance.

3. Exception 2: Wills and Bequests

In addition to legal inheritance, the decedent is free to dispose of the estate. Article 133 of the Civil Code stipulates that a natural person may make a will to designate personal property to be inherited by one or more of the legal heirs, or make a will to give personal property to the state, the collective or the legal heirs. Organizations and individuals-cohabiting partners belong to "persons other than legal heirs" and can obtain property as legatees. Key points of operation:

  1. The form of wills must be legal: self-written, scribed, printed, audio and video, oral (in case of emergency), and notarized wills are made in accordance with the requirements of Articles 134 to 139 of the Civil Code (self-written signatures must be written in person to indicate the date of the year; scribed, printed, audio and video recordings must be more than two witnesses, etc.);
  2. The legatee must make an acceptance within 60 days after he knows the bequest (the second paragraph of Article 124 of the Civil Code), and if he fails to make an acceptance within the time limit, he shall be regarded as a waiver-this is the procedure detail that cohabitants are most likely to ignore;
  3. A will shall not violate the system of reserved portions (Article 1,141): A necessary share must be reserved for heirs who lack the capacity to work and have no source of livelihood.

4. Exception 3: Discretionary distribution of the estate (Article 1,191)

Article one thousand one hundred and thirty-one of the Civil Code stipulates: for those other than the heir who depend on the decedent for support, or those other than the heir who support the decedent more, appropriate inheritance can be distributed. Cohabiting partners are fully in line with the position of "people other than the heirs who support the decedent more"-taking care of the sick party for a long time, sharing living expenses and supporting each other are all "supporting more". The amount of the share is at the discretion of the court, with reference to the length and extent of the maintenance, the total amount of the estate and the circumstances of the heirs, ranging in practice from a small share to a proportion comparable to that of the heirs. Proof of discretionary sharing:

  1. Facts of living and caring together: certificates of living together, records of medical treatment and accompanying, testimonies of neighbors and communities;
  2. facts of economic support: transfer records of long-term payment of medical expenses and living expenses;
  3. Estate: Property, deposit trail.

5. analysis of property before inheritance: the real "guaranteed rights and interests" of cohabitants"

What cohabitants are most likely to overlook is that even if they don't have the right of inheritance, the property accumulated together during cohabitation should be "analyzed" first, and the rest is the inheritance. Article 4 of the interpretation (II) implemented on February 1, 2025 specifies the rules of cohabitation and property analysis for both parties without spouses: if there is an agreement, the agreement shall be followed; If there is no agreement and negotiation fails, their respective wages, bonuses, labor remuneration, intellectual property rights income and their respective inherited and donated property shall be owned by them. The property purchased by joint investment or the income from joint production, operation and investment and other indistinguishable property shall be based on their respective contribution proportion, the division takes into account factors such as the circumstances of the common life, the presence or absence of common children, and the size of the contribution to the property.

Example: The property under Mr. Zhang’s name was purchased with joint contributions from both parties during their cohabitation and is registered solely in Mr. Zhang’s name; they jointly made mortgage payments for twenty years. After Lao Zhang's death, Lao Li cannot directly claim to "inherit" the property, but can claim his own share of capital contribution and value-added in the property according to the rules of cohabitation. This layer of rights and interests is often ignored by both the heir and the cohabitant-the heir thinks it is "all inheritance" and the cohabitant thinks he has "nothing", which is not.

Panoramic view of property and dependency rights of 6. cohabitants

List the rights that cohabitants can assert, prioritized to avoid focusing solely on inheritance rights:

  1. Cohabitation analysis of property (the highest priority): first separate the property formed by joint investment and joint operation from the "property under the name of the decedent" according to Article 4 of the (II) of the Interpretation -- the part of joint investment in house purchase, joint operation of shops and joint repayment of loans, the cohabitants enjoy the share according to the proportion of their capital contribution and contribution, which does not belong to the inheritance at all;
  2. Internal settlement of common debts: during cohabitation, the debts incurred during cohabitation should be settled together when the property is analyzed, and the cohabitants should bear the debts used for cohabitation according to their share and are not responsible for non-common debts;
  3. Discretionary share of the estate (Article 1,191): With respect to the portion of the estate belonging to the decedent, cohabitants who provided substantial care or relied on such care may claim a reasonable share.
  4. Insurance and Legacy (to be arranged before death): The insurance money that the decedent designates the cohabitant as the beneficiary shall be paid directly without entering into the estate; the property that is clearly given to the cohabitant in the will or legacy support agreement shall be obtained according to the contract;
  5. Funeral and funeral affairs: although cohabitants are not close relatives, the actual funeral expenses can be refunded according to the management without cause or unjust enrichment; the pension and subsidy issued by the heirs are shared by the close relatives who depend on them, and the cohabitants can claim the share of their support.

need to be frank: among the above-mentioned rights and interests, the first three items can be claimed without marriage registration, but they all rely on the evidence of "the fact of joint contribution and support"; the fourth item depends on the arrangement of the decedent before his death, and there is no arrangement. Therefore, for cohabitants, the worst result is not "no inheritance rights", but "neither registration, no will, and no capital contribution certificate"-the three floors are empty, and the real people and money are empty. It is the most basic responsibility to fix what can be fixed (capital contribution, will, insurance) during the duration of the relationship.

Procedure and Evidence Organization in 7. Succession Disputes

When the cohabitant appeals to the court for the obstruction of his or her rights, the proceedings shall be organized in the following framework:

  1. The choice of the cause of the case and the right of claim: the dispute over the property of cohabitation (divide the common property first) → claim to share or confirm the right of de facto marriage inheritance as appropriate in the dispute over inheritance → the dispute over testamentary inheritance or bequest involving the filing of a will. Choosing the wrong cause of action can lead to unnecessary detours; before filing a lawsuit, first clarify the legal basis for your claim.
  2. List of Evidence: Evidence of cohabitation (residence certificates, joint payment records, testimonies from relatives and friends); evidence of financial transactions (bank transfer records for jointly funded home purchases, business transaction records, records of medical expense payments made on behalf of the other party); evidence of support and care (photographs and records of accompanying the other party to medical appointments and providing daily care); identity and relationship evidence (household registration records, proof of kinship); leads regarding the estate of the deceased (property certificate numbers, bank account information).
  3. Limitation of action: The three-year limitation of action applies to the inheritance dispute, counting from the date when the heir knows or should know that the right has been infringed; but if the estate has not been divided, and the parties are in a common state and only request for division, the limitation of action is generally not applicable-distinguish "request for confirmation of the right" and "request for division of the common estate" to determine whether the limitation defense is valid;
  4. jurisdiction: disputes over inheritance are under the exclusive jurisdiction of the court of the place of the decedent's domicile or the place where the main estate is located when the decedent dies (the relevant provisions of the Civil Procedure Law), and the court of the corresponding district and county (city) within the scope of Ningbo City, and the lawsuit of property analysis is under the jurisdiction of ordinary territory;
  5. Mediation and judgment: In family inheritance cases, the court has a high proportion of mediation in advance, and if the cohabitants have sufficient evidence, they can strive for a package solution of "analyzing the share of property + sharing as appropriate" in the mediation; if mediation is not a further judgment, the judgment has clear guidelines on the proportion of inheritance distribution, which is easy to implement.

finally reminds a practical problem: one of the heirs often has the property clues and documents of the decedent, and the cohabitants do not know the amount of the estate. After filing the case, they should apply to the court in time to investigate the scope of the estate (real estate registration, bank deposit, securities account), so as to avoid "winning the share and losing the property".

class case reference: unregistered cohabitants have no legal right of inheritance, but they can still obtain the property through the arrangement of gifts (bequests) made by the decedent during his lifetime, and they must not infringe the mandatory share. In some cases, the heir signed a gift agreement with the cohabitant that came into effect "a hundred years later". After the signature was confirmed by handwriting identification, the court found that the gift contract was valid and the house and pension belonged to the cohabitant. However, his minor daughter has a mandatory share according to law, and the recipient has the obligation to compensate. Trial Court: Shijingshan District People’s Court of Beijing Municipality Case No.: (2011) Shimin Chu Zi No. 015

80Compilation.

8. Frequently Asked Questions

Do you count as husband and wife if you have a wedding and a banquet?

Not counting. The marriage relationship is established at the time of marriage registration, and the wedding is only a customary ceremony and does not produce legal marriage effects; except for those who met the substantive requirements before February 1, 1994 and lived together in the name of husband and wife (de facto marriage). Supplementary registration is the only way to make up for it.

Is it valid that the cohabiting party has made an oral will saying that the property is given to me?

An oral will is only valid in a critical situation, and it must be witnessed by two or more witnesses; if a will can be made in writing or in the form of audio or video recording after the critical situation is eliminated, the oral will becomes invalid (Article 1,138 of the Civil Code). Daily oral promises cannot be used as a will, and must be implemented as a written or audio-visual will.

How much inheritance can cohabitants get when they take care of each other for many years?

According to the discretion of Article 131th of the Civil Code, the amount is determined by the time and degree of the court's comprehensive support, the status of the estate and the situation of the heirs; those who contribute a lot to support and have no other close relatives may get a larger share. Submit complete evidence of care and financial support at the time of the proposal.

During the period of cohabitation, we bought the house with joint investment and registered in the name of one party. How to deal with the death of the other party?

Analyze the property first and then inherit: the other party (the surviving party) first proves the fact of joint contribution and claims to separate out its own share (the division is based on the proportion of contribution in Article 4 of the (II)), and the remaining part is the deceased's estate; if the contribution cannot be proved but the support can only be proved, it will be dealt with as appropriate. Registration in the name of the inherited person does not hinder the claim of property analysis, the key is the capital flow and the joint use of evidence.

The children of the decedent claim that "cohabitants are not eligible to share", and the negotiation has completely broken down. Must they go to court?

Not necessarily to sue first. The people's mediation committee or the court may be invited to intervene in the mediation before the lawsuit to spread out the evidence of the cohabitant's contribution and support, and most families will reach an agreement under the framework of "analysis of property + discretionary share"; If mediation fails, the lawsuit will be filed again. When prosecuting, it is necessary to choose the cause of the case and the right of claim: first cohabitation to analyze the property, then share or inherit it as appropriate, claim it layer by layer, and organize the evidence according to the three categories of "contribution-support-inheritance clues", which will greatly increase the odds of winning and mediation chips.