Can Ningbo death compensation divorce be divided?

a wife in ningbo asked: her husband was killed in a traffic accident during his marriage, and the perpetrator compensated nearly one million yuan for "death compensation". can this money be used as the common property of husband and wife in the event of divorce (or remarriage)? the conclusion starts with: no. Death compensation is neither marital property nor an estate; rather, it constitutes compensation for the harm suffered by the deceased’s close relatives due to the loss of a loved one. It is inherently personal in nature and is typically distributed among the deceased’s close relatives (spouse, parents, and children) in accordance with the statutory order of inheritance. This article, drawing on the Civil Code, the Judicial Interpretation on Compensation for Personal Injury, and the Ningbo judicial guidelines, clarifies “to whom this money ultimately belongs and how it should be distributed.”

1. Nature of death compensation: compensation for personal rights, three "nots"

First, thoroughly explain the properties. Death compensation is the payment made by the tortfeasor (or the insurance company) to the deceased’s close relatives as compensation for damages such as the “loss of future income” resulting from the victim’s death. It arises after the victim’s death, and the beneficiary is the close relatives rather than the deceased themselves. From this, three "nots" can be derived:

1. is not the joint property of husband and wife: the joint property of husband and wife takes "the income during the existence of the marriage relationship" as the requirement (Article 1062 of the Civil Code). Although the death compensation is paid in the marriage, its nature is the damage compensation to the close relatives, not the income from the joint production, operation and investment of husband and wife, and cannot be divided in half according to the joint property in the divorce.
2. is not an estate: Article 1122 of the Civil Code stipulates that the estate is the personal legal property left over from the death of a natural person; the death compensation is generated after the death of the deceased, which does not belong to the property left by the deceased before his death, and is not treated as an inheritance. The will has no disposition effect on it, nor is it used to directly pay off the personal debts of the deceased (different from the debt repayment rules of the estate).
3. It is not the deceased’s “payment” to the spouse.: It is a compensation right jointly enjoyed by all close relatives; the spouse is merely one of the right holders, not the sole one.

needs to distinguish several items in the compensation for the same accident: the living expenses of the dependents belong exclusively to the actual dependents (minor children, parents who have no ability to work and no source of income, etc.), and are owned by the dependents and are not included in the distribution among their close relatives; the funeral expenses are used to deal with funeral matters and are usually paid to the actual payers; the spiritual damage consolation fund is of spiritual comfort nature, allocated by the comforted close relatives according to their affinity with the deceased; onlyDeath compensation (the death compensation item itself)Allocate according to the rules for close relatives.

2. Distribution rules: Based on the statutory order of inheritance, with consideration given to the relationships of support and maintenance.

The distribution of death compensation is generally based on the method of "referring to legal inheritance + combining with real life contact:

1. Scope of obligee: spouses, parents and children are close relatives in the first order, all of which can be claimed; if there are close relatives in the first order, grandparents, brothers and sisters generally do not participate in the distribution (refer to the order of inheritance).
2. principle of distribution: instead of equal division mechanically, the court will determine the share according to factors such as the closeness of each obligee living with the deceased, the degree of economic dependence, the actual relationship of support, age and labor capacity-the share of spouses and minor children who live together for a long time is usually relatively high.
3. Priority of Agreements: Where close relatives have reached a consensus on the distribution and signed an agreement, the agreement shall prevail; however, if the agreement is clearly unfair or involves fraud or coercion, a party may seek its revocation. The relationship between
4. and insurance claims: if the death compensation has been paid directly to the designated beneficiary or family members by the insurance company, the composition of the payment (death compensation, the living expenses of the dependents and the emotional comfort payment) shall be confirmed first, and then the payment shall be handled according to their respective attribution; the personal insurance compensation is personal dependent, belongs to the personal property of the beneficiary and does not enter the distribution pool of death compensation.

3. Three Types of Disputes and Their Resolution in Divorce Scenarios

1. Case 1: One party dies in marriage, and the spouse and the deceased's parents fight for "share"-- The compensation for death is shared by the spouse, parents and children. In the context of divorce (remarriage after widowhood or parting with parents-in-law), it is not allowed to claim "half of the common property of husband and wife", but only to claim their share as close relatives; the share depends on the degree of dependence on living together and supporting.
2. Scenario 2: During divorce proceedings, one party receives death compensation from a relative.-- this payment belongs to the personal exclusive property of the party and is not divided as the joint property of husband and wife; but if the payment includes the part that belongs to the joint property of husband and wife according to law (rarely, such as the compensation for joint management of husband and wife), it needs to be identified by item.
3. Scenario 3: The compensation has been received but has not yet been distributed.-- The ownership of rights can be explained at the time of divorce, but it can not be divided directly according to the common property; if the division is not completed, the division of common property can be brought separately or dealt with in the procedure of inheritance and property analysis.

4. List of Materials and Procedure Tips

Involving the dispute of death compensation, it is suggested to fix three types of materials: ① accident identification certificate/death certificate to determine the time of death and accident responsibility; ② compensation agreement, insurance company claim list, determine the compensation items and amount composition (death compensation, dependents' living expenses, spiritual comfort money are itemized);③ kinship certificate (household register, marriage certificate, birth certificate, household registration file) to determine the scope of close relatives. Procedural, the death compensation dispute may be stated together in the divorce proceedings, or it may be filed separately for the division of the common property or incorporated into the inheritance dispute; jurisdiction is generally determined by the defendant's domicile or the location of the disputed property. Please note that the statute of limitations is three years, commencing from the date when the rights holder knew or should have known that its rights were infringed.

5. Itemized management and (example) simulation after the compensation funds are received.

When compensation is received as a lump sum, it most easily gives rise to disputes over its distribution. The very first step upon receipt should be to break down the total amount into its individual components:

1. Request a detailed claim breakdown from the liable party or the insurance company.—Death compensation, funeral expenses, living expenses for dependents, and compensation for mental distress shall be itemized separately; in cases concluded through mediation, the amounts for each item shall be specified in the mediation agreement.
2. Deduct the actual expenditure of funeral expenses first -- the reasonable expenses incurred in dealing with funeral matters shall be listed in the funeral expenses items by the actual expenditure person with the bill, and the balance shall be distributed according to the rules of close relatives.
3. The living expenses of the dependents shall be set aside separately -- according to the number of dependents (minor children, parents who have no ability to work and no source of income), the local standard and the number of years of support, the special fund shall be used exclusively, and can be managed by the guardian and shall not be used for other purposes.
4. Reallocation of Death Compensation and Compensation for Mental Distress--After deducting the aforementioned items, the remaining portion shall be distributed among close relatives through negotiation or litigation, based on the degree of kinship and dependency.

(Example, Fiction) Deduce: In a case in Ningbo, the husband died due to a traffic accident, and the family and the perpetrator reached a compensation agreement totaling 1.28 million yuan, of which the death compensation was 820000 yuan, the dependent's living expenses (12 years for daughter +10 years for mother) totaled 310000 yuan, the funeral expenses were 50000 yuan, and the mental damage compensation was 100000 yuan. After the funeral expenses of 50000 yuan are paid by the wife who actually paid the bill, the living expenses of the dependents of 310000 yuan are earmarked by the daughter and the mother respectively according to their shares. The remaining 920000 yuan (death compensation + spiritual consolation) is distributed among the wife, daughter and mother according to the legal order of inheritance and in combination with common life and support dependence. The wife has a relatively high share as the spouse living together. If the wife claims that the RMB 920,000 constitutes marital joint property and should be divided in half first, her claim will not be upheld—the nature of the funds determines the allocation rules, not the timing of their receipt.

Tips on the connection of 6., inheritance and insurance money

The same accident may produce death compensation, inheritance and insurance fund at the same time, which must be divided into accounts: ① The deposit, real estate and creditor's rights left by the deceased belong to the inheritance, which can be used to pay off the personal debts of the deceased according to the will or legal inheritance; ② The death compensation is not the inheritance, which is not used to pay off the personal debts of the deceased (except those voluntarily undertaken by the close relatives);③ Personal insurance claims shall be treated as inheritance if the beneficiary is not designated or the beneficiary dies before the insured according to the benefit attribution of the policy-the designated beneficiary. ④ In case of work-related injury death, the pension for dependent relatives is similar in nature to the living expenses of the dependent and belongs to the specific dependent relatives. The one-time work-related death subsidy is distributed among close relatives with reference to the death compensation. Each of the three sums of money should follow its own set of rules; mixing them together is the easiest way to make mistakes.

Operational Framework for 7. Discretion and Distribution Agreements for Close Relatives

The practical difficulty of the distribution of death compensation lies in "how to determine the share", and the operational framework is:

1. The six dimensions of the discretionary consideration of the share: ① the closeness of living with the deceased (the weight of the co-living spouse and minor children is high);② the degree of economic dependence (the weight of the dependents living on the income of the deceased is high);③ the actual supporting relationship (whether they actually fulfill their supporting obligations);④ the age and working ability (the preference of minors, the elderly and those without working ability);⑤ The emotional connection with the deceased and the payment for handling the funeral; ⑥ Whether there is a liability situation (such as a reduction for those who fail to perform their maintenance obligations for a long time). Courts usually base themselves on parity and then adjust for the above factors, with wide variations in the range of cases.
2. Key points of signing the distribution agreement: if close relatives reach an agreement on the distribution, they should sign a written distribution agreement and specify the amount of each project, the collection account and the non-recourse clause; if the minor's share is involved, the guardian should sign on behalf of the minor but not damage the interests of the minor (major punishment should be the interests of the ward and keep the explanation); if the agreement is signed by all the right holders, it is binding on all parties, it is difficult to reverse.
3. How to deal with the lawsuit: If the negotiation fails, it can be claimed together in the lawsuit of divorce, inheritance or division of common property, or the lawsuit of division of common property can be brought separately; the court can add other close relatives to participate in the lawsuit according to its authority, and determine the share of each obligee at one time to avoid "dividing and dividing".
4. The refunding responsibility of the received money: if one party refuses to distribute after receiving all the compensation money, other close relatives can appeal for the refunding of the part exceeding the share; if the compensation money is concealed maliciously, it is disadvantageous to decide when the share is determined by referring to the treatment idea of the hidden property in the division of common property.

8. Frequently Asked Questions

Can one husband and wife get death compensation when they get divorced?

No. Death compensation is not marital property; it is compensation to the deceased’s close relatives and is not subject to the rules governing the division of marital property upon divorce. A spouse may only claim their rightful share in their capacity as a close relative.

Is death compensation treated as part of the estate for inheritance purposes?

Not according to inheritance laws. It is distributed among close relatives by reference to the order of legal succession, but the share, combined with the degree of closeness of common life, economic dependence and other discretionary, is not exactly the same as the rule of equal inheritance of the estate, nor does it apply to the will.

Can the living expenses of a dependent be divided?

No. The living expenses of the dependants belong exclusively to the dependants (minor children, parents who are unable to work and have no source of income, etc.) and are used for their living security and are not included in the joint distribution among close relatives.

What should I do if the other party receives compensation but refuses to share it with my in-laws or my children?

can file a common property division lawsuit, requesting to divide the death compensation according to the share; if the share of minor children is embezzled, the guardian can claim it on his behalf. Fixed compensation agreement and the flow of accounts, clear total and sub-composition is the basis for winning the case.

Should the death compensation be used to pay off the personal debts of the deceased first?

Not usually used. Death compensation is not an inheritance, does not belong to the property left by the deceased, and is not directly used to pay off the personal debts of the deceased. Creditors cannot claim direct debt against death compensation.

9. Lawyer's Practical Insights

When encountering this kind of problem, don't follow the idea of "how to divide the common property of husband and wife. Death compensation is generated and paid to close relatives after the death of the victim. It is neither the estate of the deceased nor the joint property of the husband and wife, so the simple "one half" is not applicable ". The most vulnerable part of the party is that as soon as the spouse loses a relative, he is urged by the other party or in-laws to take out the money and share it. A safer approach is to fix the nature, object and purpose of the money, and then talk about how to distribute it among close relatives.

The distribution usually refers to the order of legal inheritance, which is carried out among spouses, parents and children, and is adjusted according to the support and common living conditions of each person and the deceased, instead of being divided equally mechanically. Whose share is therefore greater depends on the evidence rather than on the identity. The materials to be prepared include the payment details in the compensation agreement, the flow of accounts, the proof of the dependant's situation, etc. If the money also includes the dependant's living expenses, funeral expenses and other parts that point to a specific person, these sub-items should be taken out first, and should not be mixed into the whole and then calculated on an average. This step should be done solidly, and there will be less wrangling later.

This kind of thing often happens when the family is in the most tense mood, and the processing rhythm sometimes affects the result more than the legal rules. It is recommended to make a written distribution plan before the large distribution, and clearly write down the purpose, share and payment method of each sum to avoid verbal commitment to go back on our word in the future. If the other party has transferred or appropriated the money, it is necessary to claim and consider preservation in a timely manner to prevent the money from being dispersed again. We should also pay attention to its connection with inheritance and insurance benefits-death compensation and insurance benefits are different in nature and cannot be mixed together for simple treatment, and their respective ownership should be sorted out separately, so as not to become more and more chaotic in disputes.

The key word of death compensation is "exclusive to close relatives, non-common property, non-inheritance": it is not the property of husband and wife that can be divided by divorce, nor is it the inheritance that can be disposed of by will.It is suggested that the parties concerned should fix the accident identification letter, compensation agreement, bank flow and kinship certificate, and specify the death compensation, dependant's living expenses, funeral expenses and spiritual comfort payment to avoid mixing. Share disputes shall be negotiated and fixed in writing as far as possible, and those who fail to negotiate shall be settled through litigation according to the rules of close relatives.

When dealing with the distribution of death compensation, it is suggested to grasp the order of "itemizing, redistributing and dropping the paper later": before the compensation is paid, all close relatives should be called to negotiate the composition of itemizing and the proportion of preliminary distribution. If an agreement can be reached, the distribution agreement should be signed on the spot and the itemizing amount and the collection account should be clearly stated to prevent "the change of people after the money is paid, the money is first deposited into a co-managed account or kept by a trustee, and then the share is determined through mediation or litigation, and no secondary disputes are caused by one person's exclusive account. In the lawsuit, take the initiative to submit the itemized list of claims, proof of kinship and evidence of common life, and explain to the court the degree of dependence of each obligee. For those with large share gap, they can apply to the court to entrust mediation or family investigation. Ningbo court will also adjust the property analysis disputes involving death compensation before judgment. The concession space in mediation is often greater than the rigid proportion of judgment.