Ningbo marriage to buy insurance as a common property?
During the subsistence of a marriage, if one party requests division of insurance purchased while the marriage was ongoing upon divorce, the policyholder often refuses on the grounds that the insurance has a personal nature. Is all insurance purchased during marriage common property? One sentence conclusion: For insurance purchased with the common property of the husband and wife during marriage and with cash value, it is usually necessary to divide the cash value of the policy upon divorce; for personal insurance claims obtained due to illness, accident or disability, the metal is paid to personal property; policies such as education benefits for children are generally regarded as gifts to children. The key to judgment is the three elements of policy type, premium source and insurance interest attribution.
1. legal basis: common property, personal property and pension rules
Article 1062 of the Civil Code stipulates that property such as wages, bonuses, labor remuneration, income from production, operation and investment, etc. earned by the husband and wife during the existence of the marriage relationship is the common property of the husband and wife. The interests of the policy formed by the payment of premiums in the joint property of the husband and wife, the source of the property has a common attribute. Article 1063 stipulates that the compensation or compensation obtained by one party due to personal injury shall be the personal property of the husband and wife. Accordingly, the personal insurance compensation (medical insurance, accident insurance and serious illness insurance) obtained due to illness, accident, disability, etc. has personal exclusive attribute and belongs to personal property, which shall not be divided in the event of divorce.
The rules of endowment insurance are connected with it: Article 80 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's the People's Republic of China of China stipulates that during the existence of the marriage relationship, one of the spouses shall, as the insured, pay the endowment insurance premium according to the basic endowment insurance for urban employees and other regulations, and at the time of divorce, one of the spouses claims to divide the actual part of the part of the pension account during the marriage as the joint property, the people's court should support it. Although there is no specific statutory provision for commercial insurance, the judicial reasoning is analogous: premiums paid during the marriage with marital property, as well as the corresponding cash value, constitute divisible marital property.
2. the division rules of three types of insurance policies: according to the type of insurance
The first category is the protection type of life insurance (serious illness insurance, medical insurance, accident insurance, term life insurance): the personal exclusive property of the claim fund belongs to the insured; but if the insurance policy has cash value (such as long-term serious illness insurance and whole life insurance, the cash value formed by paying the premium of common property in marriage is still common property and can be divided in divorce.
The second category is savings and investment insurance (dividend insurance, universal insurance, annuity insurance, investment-linked insurance, incremental whole life insurance): this type of insurance policy takes investment and savings as its main purpose, with high cash value. If the insurance is insured by common property within marriage, the cash value belongs to common property, which can be divided when divorcing -- surrender the insurance to divide the cash value, or one party continues to hold the insurance policy and pay discount to the other party, two ways optional.
The third category is education pension and annuity insurance for children: the premium comes from the joint property of husband and wife, but the insurance interest belongs to the children. In practice, it is generally regarded as a gift from parents to children, not as the division of joint property of husband and wife; after divorce, both parties can agree separately on who will continue to pay the premium and how to arrange the cash value of the insurance policy.
The Three Elements of 3. Judgment
The first is the source of premium: the premium paid with the common property after marriage, and the corresponding policy interest belongs to the common property; the premium paid with the personal property before marriage or the property that is clearly agreed to be owned by the individual belongs to the personal property. For policies purchased before marriage and renewed with common property after marriage, the portion of the contributions made after marriage and the corresponding appreciation are common property, and the cash value is converted according to the proportion of contributions made after marriage when divided. Second, the type of policy: personal claims to individuals, cash value-based policies can be divided. The third is the ownership of insurance interests: the insured is only the main body of payment, and the arrangement between the insured and the beneficiary affects the ownership of the insurance money-if the designated beneficiary of the death insurance money belongs to the beneficiary and does not belong to the estate of the insured; if the beneficiary is not designated or the designation is unknown and cannot be determined, the death insurance money shall be treated as the estate of the insured, and the inheritance rules shall be followed.
About the change of the policyholder: if one party continues to hold the policy after divorce and needs to change the policyholder, contact the insurance company for approval; if the husband and wife have a written agreement on the ownership of the insurance, the agreement shall be followed. In the divorce agreement, it is recommended to state the policy number, insurance type, cash value compensation amount and change time limit, so as to avoid disputes after leaving.
4. operational steps: from taking inventory of policies to completing changes
- sort out all the insurance policies in marriage: list the insurance company, insurance type, policyholder, insured, beneficiary, payment period and accumulated premium.
- Determine the source of premium: Distinguish the payment of personal property before marriage and the payment of common property after marriage, and mark them one by one.
- Inquire the cash value of the insurance policy: ask the insurance company for the current cash value table, and calculate the difference between the surrender loss and the discount compensation.
- Negotiate division scheme: give priority to one party to continue to hold and compensate the other party to reduce the loss of surrender; if surrender is needed, divide it after calculating the surrender premium.
- Change the policyholder and beneficiary: go through the approval procedures according to the requirements of the insurance company, which involves the synchronous arrangement of the renewal and protection of the minor insurance policy.
5. Common Misconceptions
Misunderstanding 1: All insurances cannot be divided
Error. Life insurance claims are paid to individuals, but financial insurance with cash value can be divided into cash value.
Misunderstanding 2: The policy belongs to whoever the policyholder is.
Error. The policyholder is only the subject of payment, and the attribution of the cash value of the policy shall be determined in the light of the source of the premium and the nature of the property.
Misunderstanding 3: surrender division is the most fair
Error. Withholding may result in large losses (the withdrawal is lower than the premium paid or even lower than the cash value), and it is often more economical for one party to continue to hold and pay the discount, especially when the cost of reinsurance is higher after the withdrawal of the protection policy.
Misconception 4: Once the insurance claim payment is received, it is automatically considered personal property.
Basically correct but pay attention to the risk of mixing. Personal claims are exclusive to individuals, but if they are used in the same way as family joint account funds and cannot be distinguished, it is more difficult to prove when claiming personal attributes, and it is recommended that the claims be stored separately.
6. Case verification and judicial guidelines
According to the analysis of analogous judicial precedents: During a divorce, if the husband claims that an annuity insurance policy purchased during the marriage is of a personal nature, it shall not be subject to division. The court found that the annuity insurance paid the premium with the joint property of the husband and wife, had cash value, and belonged to the joint property. It ordered the cash value of the insurance policy to be divided according to the joint property, and the man continued to hold the insurance policy and paid the discount to the woman. During the same period, the court determined that the disability insurance premium paid due to traffic accidents had personal exclusiveness and belonged to the injured party. The case embodies the two-track judgment logic of "the claim is paid to the individual and the cash value can be divided.
According to the divorce dispute case between Chang and Meng publicly decided by Ningbo Jiangbei Court, the court divided the house, vehicle and insurance policy according to the confirmed value, and the cash value of the insurance policy was treated as common property in Ningbo.
7. surrender loss calculation and division scheme selection
Dividing the cash value insurance policy, first calculate the "surrender account" and then select the plan. The pre-cash value of savings policies is usually significantly lower than the premiums paid (due to the dilution of upfront fees and commissions), and the withdrawal of insurance in the first few years of payment may lose more than 30% of the premium; the longer the payment period, the closer the cash value is to or even more than the premium. Therefore, two paths should be compared when dividing: surrender and divide the cash value, with simple procedures but both parties bearing losses; If one party continues to hold the policy and pays the discount to the other party according to the current cash value of the policy, the protection and value-added functions of the policy can be continued, and it is usually more economical-especially for heavy disease insurance, life insurance and other protection policies. Re-insurance after surrender may increase fees or even refuse insurance due to age. Discount compensation is obviously better than surrender. Measurement points: to the insurance company to obtain the current cash value table (or through the official APP query), to confirm whether there is a loan, universal account balance, did not receive dividends and other additional interests. If the parties disagree on the cash value, they may apply for an assessment of the cash value of the policy in the divorce proceedings. After the division scheme is determined, the procedures for the change or withdrawal of the policyholder and beneficiary shall be handled in a timely manner, and the "agreement agreement" shall be implemented into the "policy approval".
8. Beneficiary Arrangement and Attribution of Death Insurance
The ownership of the death insurance is independent of the divorce division, which is worthy of separate explanation: if the spouse is insured for the death insurance and the spouse is designated as the beneficiary, if the beneficiary is not changed after the divorce, according to article 9 of the judicial interpretation (III) of the insurance law, there is a clear agreement on the identity relationship of the beneficiary when the beneficiary is agreed, and the identity relationship changes when the insurance accident occurs, it should be recognized as an unspecified beneficiary-I .e. the former spouse is usually no longer entitled to insurance benefits after divorce, and the insurance benefits may be treated as the insured's estate. This has three implications for the parties: first, the divorce agreement or mediation should clearly stipulate the beneficiary's change obligation and processing time limit of each policy (such as "changing XX policy beneficiary to child within 30 days after divorce") to prevent disputes over the ownership of insurance money after death; The second is to communicate and change the arrangement of the applicant or beneficiary in time after divorce for the insurance policy with the other party as the insured, to avoid "people are still paying, protection but pointing to strangers"; Third, the marriage to the common property insurance, the insured after the death of the insurance has been paid, the ownership of the insurance money according to the beneficiary designated treatment, designated children to children, unspecified according to inheritance, generally do not re-enter the divorce property division. In the case of a will, the insurance money and the estate shall be arranged as a whole, and the scope of the property covered by each shall be clearly defined, so as to avoid overlap and conflict.
Treatment and mediation strategy of 9. insurance policy division dispute
Disputes over policy division typically center on three key issues: how the cash value is calculated, who retains ownership of the policy, and the amount of compensation. The suggestion of processing sequence is: first settle accounts (print cash value table, sort out the source of premium and the proportion of payment after marriage), then talk about the plan (retain or surrender), and finally leave the paper (agreement to write the number of the policy and the time limit for change). The common difference in accounting is "according to the paid premium or according to the cash value"-the common property corresponds to the cash value of the policy instead of the accumulated premium. It is normal that the cash value at the initial stage of payment is lower than the premium. If the party who advocates the division according to the total premium has a wrong understanding, the insurance company can be asked to issue a written cash value statement to eliminate the dispute. Who continues to hold, giving priority to the need for protection and the ability to renew: the protection policy is recommended to be retained by the insured himself or by the party on whom it is protected, and the investment policy may be bid or discounted at cash value. If the amount of compensation is not negotiated, you can apply for evaluation in divorce proceedings, or you can use the mediation idea of "half-and-half cash value and mutual non-difficulty. In terms of mediation strategy, the policy is often packaged and negotiated with other property (real estate, deposits, vehicles). It is often easier to reach an agreement than to replace partial concessions with the overall interests. After the mediation plan is confirmed by the court, the implementation of the policy change clause is guaranteed, which is more stable than the self-agreement. Special Note: Any verbal agreement on the division of liability must be documented in the mediation statement or the terms of the agreement, clearly specifying which party is responsible for providing the materials required by the insurance company for endorsement, to avoid situations where “an agreement is reached but cannot be implemented.”
class case reference: in the property dispute after the divorce between the plaintiff and the defendant, the plaintiff claimed that the defendant concealed the financial products and requested to divide them again, but the court rejected the request because of insufficient evidence, but upheld the judgment of first instance, the defendant paid the insurance premium of 20000 yuan to the plaintiff, which means that the insurance premium paid by common property in marriage can be divided as common property. Trial Court: Case No. of Ningbo Intermediate People's Court of Zhejiang Province:(2014) Zhejiang Yong Min Yi Zhong Zi No. 765
10. Frequently Asked Questions
The divorce agreement stipulates that the insurance policy belongs to me. What procedures should I go through?
To be corrected. The agreement is only valid between the two parties, you need to contact the insurance company to change the policyholder (and beneficiary), submit the divorce agreement or judgment, the identity of both parties, etc., otherwise the renewal, collection and claims are still handled according to the original policyholder information, easy to reproduce disputes.
The other party secretly bought a large insurance policy for a third party or children outside marriage, can you chase it?
If the third party is insured by common property in marriage, the premium or policy rights and interests can be returned by referring to the rules of invalid gift (against public order and good customs); if the child is insured for the child outside marriage, it is regarded as the gift to the child born out of wedlock, and the practical treatment should be combined with the comprehensive judgment of fault and public order and good customs, and it is suggested to disclose the claim in divorce proceedings.
How to calculate the annual return of annuation insurance when divorce?
For annuity insurance insured by common property within marriage, the survival annuity and the cash value of the insurance policy are usually treated as common property, the received annuity is included in the division of common property, and the unreceived annuity is converted according to the cash value, which is subject to the terms of the insurance policy and the source of payment.
After the divorce, can the ex-wife/ex-husband still receive the specified death insurance?
Usually not. After the change of identity relationship, the agreement of the original designated beneficiary may be recognized as an undesignated beneficiary, and the insurance premium shall be treated according to the estate of the insured and inherited by the legal heir.
Where does the cash value statement of the policy go?
The official APP, public number or customer service of the underwriting company can apply for printing, and the counter of each branch of the insurance company in Ningbo can also handle it; if the other party refuses to provide it in the divorce lawsuit, it can apply for the court investigation order or the court can obtain the insurance record according to its authority.
XI. Lawyers' Practical Experience
Whether or not the insurance purchased in marriage should be divided, the core of the judgment is three elements: the type of insurance, the source of the premium, and who the insurance benefits ultimately belong.With the joint property of the husband and wife to pay, but also has a cash value of the policy, divorce usually to divide the cash value. When you hear the sentence "insurance has personal attributes, so it can't be divided", don't go along with it. First, put it into which category, and then talk about whether it should be divided and how much.
Make a list of policies for practical operation, and list the types, policyholders, insurants, beneficiaries, annual premiums paid, paid years, current cash value and surrender losses, and look at serious illness, accident, life insurance, annuity and education separately. Cash value can be applied to the insurance company for inquiry, do not estimate by impression. Then distinguish between pre-marital and marital contributions, only deal with the marital part. If it is found that the other party in the emotional cracks after the concentration of large amounts of insurance, to pay special attention to, this may be a disguised transfer of property with premiums, found clues should be promptly filed in the lawsuit and consider applying for preservation.
The division scheme is generally that one party continues to hold the insurance policy and compensates the corresponding cash value of the other party, or the cash value is divided after surrender. Sanctions are usually discounted and the loss is not small, so in most cases it is not as good as a retention form or compensation. During the negotiation, it is much more fair and effective to put out the figures of surrender losses and use "keep without loss, refund with loss" to persuade the other party to accept compensation than empty talk. In the agreement, the beneficiary clause should be handled together and changed simultaneously, otherwise the death insurance may become a controversial point again in the future, and the good things discussed before will be dragged back.
Three sentences of the division of marital insurance: the compensation depends on the exclusive attribute (personal injury belongs to the individual), the cash value depends on the source of the premium (common property payment can be divided), and the children's insurance policy depends on the gift attribute (education fund is usually not divided). Operational recommendations: marital insurance as far as possible bank transfer mark, before divorce print cash value table to calculate the loss of surrender, priority to choose "retention policy + discount compensation", the agreement to write the policy number and change time limit and timely correction. Personal claims are stored separately and not mixed with family accounts, which is the last line of defense to preserve personal attributes.