Insights

Can Ningbo Parents' Legacy Divorce be Divorced

Ningbo Author：LuXu WANG

Is it reasonable for the spouse to say that they should share half of the inheritance left after the death of the parents during the marriage? Conclusion First of all: the property inherited during the marriage is generally the common property of the husband and wife, which can be divided during the divorce; but if the decedent makes it clear through the will that it only belongs to one party, it belongs to the personal property and does not participate in the division. The decisive factors are the two key terms: “designation or not” and “time of commencement of inheritance.” This article, in conjunction with the Civil Code and relevant judicial interpretations, comprehensively clarifies the legal characterization, division, common misconceptions, and evidentiary requirements pertaining to inheritance acquired during marriage.

1. Legal Qualification: Inherited property is initially presumed to be jointly owned, with designation to one party being the exception.

Item (IV) of the first paragraph of Article 1062 of the Civil Code: The "property inherited or donated by the husband and wife during the existence of the marriage relationship, except for the property specified in Item 3 of Article 1063 of this Law", is the common property of the husband and wife and belongs to the husband and wife. Article 1063, item (III): Property specified in a will or gift contract as belonging solely to one spouse is the personal property of that spouse. The two relevant provisions are as follows: property acquired through inheritance during marriage is initially presumed to be jointly owned; however, a will (or gift contract) that expressly stipulates that the property “belongs solely to one party” constitutes a statutory exception that excludes the other spouse’s share.

Dismantling of the requirements: the first requirement (time), the inheritance begins during the existence of the marriage-the inheritance begins at the time of the decedent's death (Article 1121 of the Civil Code), which is not subject to the actual time of division or transfer. The date of the decedent's death is within the marriage, and the inheritance income belongs to the marital income; the second requirement (designation), whether the will explicitly excludes the spouse-"inherited by the children" has different meanings from "inherited by the children and has nothing to do with their spouses". Only the latter has the effect of excluding common property, and vague wording may be interpreted as including the spouse's share; element 3 (type), the same rules apply to the real estate, deposits, equity, vehicles, etc. derived from legal inheritance and testamentary inheritance, and the form of inheritance does not affect the characterization. If a couple agrees in writing that inherited property shall belong to one spouse (Article 1065 of the Civil Code), such agreement shall prevail over the statutory presumption.

2. Scenario breakdown: four typical scenarios

Scenario 1: The will stipulates that “the inheritance shall be held by the children individually and is unrelated to their spouses.” This portion of the estate constitutes the personal property of the designated heir and is not subject to division in a divorce; however, it should be noted that the will only addresses the specifically identified assets. Any other assets not disposed of in the will may still be included in the marital property pool under statutory succession—when reviewing the will, it is essential to determine whether its provisions cover the entire estate.

Scenario 2: There is no will, and statutory succession occurs during the marriage. Inherited property is generally considered marital property, and the surviving spouse may claim a share; even if the inheritance is registered solely in the name of one heir, it does not alter its status as marital property.

Scenario 3: The inheritance commenced before marriage, but the actual division and acquisition of the inherited property occurred after marriage. The characterization shall be based on the starting point of inheritance-if the decedent dies before marriage and the estate is divided after marriage, the property rights and interests belonging to one party before marriage shall not be converted into common property due to acquisition after marriage; If the heir gives up inheritance, the spouse generally cannot claim invalidity on the grounds of "giving up inheritance harms the interests of common property" (Article 11 of the Interpretation (II) of Marriage and Family: if one of the spouses claims that the other party's waiver of inheritance is invalid on the grounds that the property that the other party can inherit is the joint property of the husband and wife, and the waiver of inheritance infringes on the interests of the joint property of the husband and wife, the people's court shall not support it, but there is evidence that the waiver of inheritance leads to the waiver of the party's inability to perform the legal maintenance obligations except).

Scenario Four: The inheritance has already commenced, but the estate has not yet been physically divided among the heirs when a divorce lawsuit is filed. According to Article 81 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code, during the existence of the marriage relationship, the inheritance that one of the husband and wife can inherit according to law as the heir has not been actually divided between the heirs. If the other party requests division during the divorce, the people's court shall inform the parties concerned to sue separately after the actual division of the inheritance between the heirs-the court temporarily does not mean that the rights, after the division of the estate, another claim may be made.

3. Handling details for different heritage forms

Real Estate: Property acquired during marriage through inheritance without a will specifying its allocation shall be treated as joint marital property. Upon divorce, it shall be valued at market price and either compensated for by a cash settlement or disposed of through bidding or auction; the time of inheritance and each party’s financial contributions will affect the respective shares. Deposits and Wealth Management Products: Bank deposits and wealth management products acquired through inheritance are classified based on the date of the inheritance event, and the acquisition date must be confirmed using bank statements and the notarized certificate of inheritance rights. Equity: Inherited equity in a limited liability company—upon inheritance, the heir may, in accordance with the law, acquire shareholder status. In the event of division upon divorce involving other shareholders, the provisions governing equity division shall apply by analogy; however, the characterization of such equity as “joint property” remains unchanged. Insurance-related property: According to the Ningbo Intermediate People’s Court’s “case-based legal explanation” guidelines, insurance claims that are personally tied to an individual constitute personal property; however, premiums paid during the marriage using marital common property are considered joint property. In divorce cases in Ningbo, insurance policies are typically divided between the spouses based on their confirmed value. A common requirement for all types of inheritance is to use the original will, a certificate of inheritance, and proof of the date of acquisition to establish two key points: whether a specific beneficiary has been designated and the date on which the inheritance commenced.

4. Scenario Exercise (Example, Fictional)

During his marriage, Chen of Ningbo’s father passed away without leaving a will. As one of the legal heirs, Chen inherited a property and registered it in his own name; two years later, when Chen divorced, his spouse claimed a share of that property. Pursuant to Article 1062, the real estate inherited during marriage pursuant to statutory succession constitutes marital property. Courts typically rule that the house shall be awarded to Chen, who is then required to pay the surviving spouse an equivalent monetary compensation based on the appraised market value. If the will executed by Mr. Chen’s father stipulates that “the property shall be inherited solely by Mr. Chen and is unrelated to his spouse,” then the house shall be regarded as Mr. Chen’s personal property, and his spouse shall have no right to claim a share. If Chen had not yet married at the time of his father’s death and the estate was fully divided after marriage, the property would likewise be deemed to belong personally to Chen (as the inheritance commenced before the marriage); if Chen had already renounced the inheritance prior to divorce and there is no evidence showing that such renunciation would render him unable to fulfill his support obligations, the spouse would likewise find it difficult to argue that the renunciation is invalid. For the same estate, different designation times can lead to vastly different outcomes.

5. Analysis of Common Misconceptions

Myth 1: The estate belongs to whoever it is registered under. Correct answer: Registration does not affect the legal characterization; property acquired through inheritance during marriage, even if registered solely in the name of the inheriting spouse, remains marital property.

Myth 2: It’s sufficient to write in the will that “the children shall inherit.” Correct answer: It is recommended to explicitly state wording such as “personal inheritance, unrelated to the spouse,” as vague phrasing may be interpreted as including the spouse’s share.

Misconception 3: If you delay dividing the assets until after the divorce, your spouse will not be entitled to any share. Correct answer: Qualitatively, the time when inheritance begins is determined; delaying the process does not alter its nature, but it does increase the difficulty of providing evidence.

Myth 4: Concealing the fact of inheritance or forging a will will ensure that the estate is preserved. Correct answer: According to Article 1092 of the Civil Code, a party who conceals or transfers marital joint property may receive a smaller share or no share in the divorce division; furthermore, forging a will may also entail legal liabilities such as liability for frivolous litigation.

Misconception 5: My spouse can prevent me from renouncing the inheritance. Correct answer: Except in special circumstances such as when renouncing inheritance would make it impossible to fulfill statutory support obligations, the right of inheritance belongs to the individual heir; a spouse cannot prevent the renunciation on the grounds that "the estate was originally joint property" (Interpretation (II), Article 11).

6. Evidence and Checklist of Procedures

  1. Original will and notarial certificate—evidence regarding “whether a designation exists and the content of the designation”;
  2. Certificate of Inheritance Rights, Death Certificate, and Proof of Kinship—certifying the scope of heirs and the time when inheritance commenced;
  3. Real estate ownership certificate, bank statements, and investment certificates—used to ascertain the nature and acquisition date of the estate;
  4. Marital property agreement (if any) — the written document specifying the ownership of inherited property;
  5. For insurance-related assets: insurance policies, premium payment receipts, and claim documentation.

7. The connection between the division of property among multiple heirs and divorce proceedings.

Parents’ estates often have multiple heirs, and the manner in which property division is coordinated with divorce proceedings directly affects whether the assets can be divided smoothly. The sequence logic is "analysis of property before divorce and division": if the estate has not been actually divided among multiple heirs, the part requested by the spouse for division in divorce proceedings will not be handled for the time being (article 81 of the (I)). the share of the estate must be determined to the heir's personal name through notarization of inheritance or inheritance proceedings, and then the spouse shall claim division of the common property. One of the two paths of property analysis is: first, notarization of inheritance-if all heirs reach a consensus through consultation, they should go to the notary office for notarization of inheritance rights to clarify the share of each heir's income and the ownership of the real estate; Second, inheritance litigation-if the heirs fail to negotiate, file a lawsuit for inheritance dispute with the court, and transfer the ownership after the judgment determines the share. Only after the division of marital property is completed does the divorce litigation (or post-divorce property dispute) have a clear factual basis regarding the property at issue.

Three hints in the connection: First, the abandonment of inheritance must be made before the division of the estate, and it is advisable to give up the share in written form-after giving up, the share will be transferred to other heirs according to the legal inheritance, and the spouse cannot claim the abandonment is invalid (Article 11 of the (II) is explained, unless it makes them unable to fulfill the legal maintenance obligations); Second, the division of self-built houses in rural houses and homestead is restricted by land policy, both property analysis and divorce division may face the situation of "unable to divide the physical object, only to confirm the share", it is appropriate to consult the local policy in advance. For the heirs, initiating the division of estate as early as possible is not only a prerequisite for divorce-related property division but also a pragmatic measure to prevent the “estate from remaining undistributed among the heirs for many years, with unclear ownership of any accrued income.”

8. The impact of bequests, testamentary trusts, and legacy support arrangements.

In addition to legal succession and testamentary succession, the path of acquiring property in marriage may also be the arrangement of bequest or bequest support, and the qualitative rules are slightly different: firstly, bequest income-according to Article 1062 of the Civil Code, "inherited or bequeathed property" in marriage belongs to common property, and bequest (property acquired through bequest) is essentially bequest, unless it is determined in the legacy that only one party belongs to, it will also enter the common property pool. Second, the income from the legacy support agreement-according to Article 1158 of the Civil Code, the dependant acquires the estate after fulfilling the obligation of birth, death and burial in accordance with the agreement. If the dependant is a married person and the performance of the obligation mainly uses the resources of the couple's common life, there is room for dispute whether the estate is common property, judicial practice mostly combines the subject of performing maintenance obligations and the source of capital contribution to judge. Written agreement and capital contribution certificate are the key. Third, testamentary trust-if the beneficiary gradually acquires property arranged by the establishment of a trust in a will, when the trust benefits belong to the beneficiary and whether the income is obtained within marriage shall be judged according to the trust documents, and the actual acquisition time shall be determined when the divorce is divided. In general, the property benefits acquired during marriage, whether in the name of inheritance, bequest or trust distribution, are based on the "time of acquisition + with or without directional designation" as the dividing line of common property-parents should write "only to their children" in wills, bequests or trust documents if they have directional will, this sentence is better than countless subsequent quarrels.

9. Frequently Asked Questions

Does an inheritance acquired during marriage have to be divided in a divorce?

Generally, it needs to be divided. Property acquired through statutory succession during the marriage is considered marital property and may be subject to division upon request by the surviving spouse in the absence of a will specifying otherwise; however, if the will explicitly designates the property as belonging solely to one spouse, it shall not be divided.

If my parents’ will bequeaths the property to me personally, does it still count as marital joint property?

No, it doesn’t count. Property designated in a will to belong solely to one party is, pursuant to Article 1063(III), considered personal property and is not subject to division upon divorce; it is recommended to state: "to be inherited by [name], and is unrelated to their spouse."

Can the inheritance be divided before the succession procedures are completed?

According to Interpretation (I), Article 81, if the estate has not yet been actually divided among the heirs, the court will generally first handle the portion that has already been divided, and advise the parties to file a separate lawsuit after the remaining portion is actually divided.

If inheritance begins before marriage but is only received after marriage, to whom does it belong?

Regarding the time when inheritance commences: If the decedent dies before marriage, the inheritance interest constitutes a premarital property interest and retains that character even if acquired after marriage; conversely, if inheritance commences during the marriage, the opposite applies.

If the other party renounces their inheritance, can I claim it is invalid?

Generally not. Inheritance rights belong to the individual heir, and the waiver of inheritance is generally valid; unless such waiver results in the inability to fulfill statutory support obligations (Interpretation (II), Article 11), otherwise it is difficult for the spouse to prevent it.

10. Practical Legal Insights

Whether property can be divided depends solely on two key factors: whether a will designates the property to one party, and when the inheritance occurred. Property acquired by inheritance during the subsistence of a marriage is generally presumed to be marital property and may be subject to division upon divorce; however, if the decedent expressly designated in a will that such property is to belong solely to one spouse, it shall be considered the individual property of that spouse and not subject to division. Property inherited prior to marriage is typically regarded as the individual property of the inheriting spouse. Therefore, the first step is to locate the will or testamentary document and secure evidence of the date on which the inheritance commenced. Only once the legal classification is correctly determined can the subsequent division of the estate be properly addressed.

The situation needs to be examined in detail. While the decedent is still alive and the estate has not yet been partitioned, a spouse’s claim for division often encounters obstacles, as the rights have not yet been formally vested in that spouse. If an heir explicitly renounces their inheritance at this critical juncture, it may be construed as an attempt to artificially reduce the estate available for division, and the other party may rely on this to assert their own rights. The handling of different types of assets also varies: real estate, bank deposits, equity interests, and wealth management products each require separate verification of ownership and supporting documentation; they cannot be divided using a one-size-fits-all approach.

Evidence and procedures must be arranged together. Collect kinship certificates, wills, notarization of inheritance rights or relevant judicial documents, and property registration information; if divorce proceedings and estate analysis are intertwined, first arrange the procedures for the confirmation of inheritance rights and the division of divorce property in a clear order to avoid repeated prosecutions and back and forth.During the negotiation, the parties should also be reminded not to go to two extremes: they should not be attributed to themselves by default because they are "given by their parents", nor should they be divided by default because they are "registered in the name of their spouse". The key is still whether there is any designation and when the inheritance occurs.

The key to the divorce division of parents' estate lies in "the designation and acquisition time of the will": parents can make it clear through the will that the estate belongs only to their children when they are alive; After the inheritance occurs, notarize the inheritance in time and preserve the evidence of the acquisition time; In the divorce proceedings, the division request is put forward together to avoid additional prosecution to increase costs; Do not conceal the facts of inheritance or forge a will, otherwise, or bear adverse consequences according to 1092.