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How to calculate the inheritance of a divorced party in Ningbo but the inheritance is not divided

Ningbo Author：LuXu WANG

If one of the spouses's parents dies during the marriage and the estate is not clearly separated, the two will divorce. In this case, does the property, deposit and equity left by the decedent count as the common property of the husband and wife? Can they be divided directly at the time of divorce? The answer depends on whether the inheritance has begun, whether the estate has actually been divided, and the attitude of other heirs.

The legal significance of the beginning of 1. inheritance and the division of the estate.

Article 121 of the Civil Code provides that inheritance begins at the death of the decedent. After the beginning of the inheritance, the estate belongs to the common state of all heirs, and before the division, any heir has only the right of expectation of the share, not the ownership of a particular property. Therefore, the acquisition of inheritance rights by one of the spouses during the marriage due to the commencement of inheritance is not equivalent to the acquisition of a certain amount of joint property of the spouses.

1. The time of succession and the duration of the marriage relationship.

If the decedent's death occurs during the marriage, the inheritance benefit arises in principle during the marriage. If the estate has been divided before the divorce, the share is usually the joint property of the husband and wife.

2. The impact of wills and waivers of inheritance

if the heir leaves a will that makes it clear that a property belongs only to one of the spouses, the estate does not belong to the joint property of the husband and wife, and the other party has no right to divide it in the event of divorce. If the heir abandons the inheritance during the marriage, whether the abandonment affects the spouse's property rights and interests shall be judged in combination with the time of abandonment, the reason and whether it is malicious.

Common Attributes of Undivided Inheritance in 2. Marriage

article 1062 of the Civil Code stipulates that the property inherited or donated by the husband and wife during the marriage is the joint property of the husband and wife, except where it is determined in the will or contract of gift that it belongs only to one party. In cases where the inheritance has begun but the estate has not yet been divided, one of the spouses acquires the right to expect a share of the estate as a result of the inheritance. The right of expectation is in nature a property interest in which the husband and wife share a property interest, but is not directly enforceable until the estate is divided. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of the divorce cases it accepts involve the division of property, and property and deposits inherited from marriage are often the most valuable part of the dispute.

1. The difference between the right to expect and the acquired property.

The right of expectation is a right to acquire property in the future and is not equivalent to a deposit or property that has already been acquired. In the event of divorce, the court usually does not directly award the undivided estate to both spouses, but confirms that one party has the share of the inheritance and reserves the right of the other party to claim the corresponding value after the actual division of the estate.

2. Common scope

if the inheritance begins during the marriage and is excluded without a will, the property value corresponding to the right of expectation belongs to the joint property of the husband and wife. However, the part of the estate shared with other heirs, the property belonging exclusively to the spouse of the heir, etc., is not included.

3. whether the share of the estate can be divided directly in the event of divorce.

The parties to divorce proceedings are the husband and wife, and the division of the estate involves other heirs. Other heirs are not parties to a divorce case, and the divorce court cannot, in principle, impose sanctions on the property rights of other heirs. Therefore, divorce usually does not directly divide the heir's estate, but deals with the expectation right value of the inheritance share of the husband and wife.

1. Dividable property interests

if the value of the estate can be determined and other heirs cooperate, the divorce court may, at its discretion, compensate for the right of expectation at a discount in the divorce case. For example, if the decedent leaves a property and the other heirs have agreed to be inherited and notarized by one of the spouses, but have not yet been transferred, the court may divide the value of the property that belongs to one of the spouses as common property.

2. Cases not to be dealt with for the time being

if the estate has not been clarified, there is a dispute between the heirs, or the value needs to be determined after demolition and disposal, the court will usually make it clear in the divorce judgment that "the property will be dealt with separately after the actual division", so as to avoid making an unenforceable judgment in this case.

Coordination of interests of 4. other heirs

when a divorcing party inherits an undivided estate, the rights and interests of the other heirs must be respected. Other heirs may claim that they should be divided, that an estate is a personal gift, or that the value of the estate is different. These disputes are inheritance disputes and should not be resolved together in divorce proceedings.

1. Additional parties or suspension of proceedings

in individual cases, the court may add other heirs as third persons to participate in the proceedings and express an opinion on the share of one of the spouses in the estate, or suspend the division of property in the divorce proceedings until the inheritance dispute is concluded. The choice of addition or suspension depends on the extent to which the estate dispute is related to the division of the divorce property.

2. The value of the agreement between heirs

if the other heirs have signed an agreement on the division of the estate, specifying the share of one of the spouses, the agreement can be used as an important basis for the division of the divorce property. However, the agreement must be a true expression of the will of all heirs and not prejudice the interests of creditors or third parties.

The relationship between 5. analysis litigation and divorce litigation.

When the estate is complex and the heir dispute is large, it is usually necessary to take two steps: the first step is to file an inheritance dispute or a common property division lawsuit between the heirs to determine the actual share of the estate due to one of the spouses; the second step is to divide the share as the joint property of the husband and wife in divorce proceedings or post-divorce property disputes. According to the "Answers to Several Questions on the Trial of Marriage and Family Cases" by the People's Court of Zhejiang High Court (Gao Fa Min 1 [2016] No. 2), the divorce lawsuit is a compound lawsuit, and the property division request does not need to file a separate counterclaim, and can be claimed together in the same case.

1. Limitation of time for separate claims after divorce

the right to expect an inheritance that was not processed at the time of divorce, after the actual division of the estate, the other party may file a lawsuit within three years from the date when he knew or should have known that the right was violated, requesting the division of the corresponding share. The starting point of limitation is not when the heir dies, but when the estate is actually divided and the rights are exercisable.

2. Reservation clauses in divorce agreements

if it is known at the time of divorce that the inheritance has begun but the estate has not yet been divided, it is recommended that the agreement expressly state that the share of the estate that one party may acquire as a result of the inheritance shall be treated as common property after the actual division, or that the party acquiring the estate shall pay the corresponding compensation to the other party within a certain period of time after receipt. This can reduce post-mortem controversy.

6. case proof

in practice, if the decedent dies during the marriage of the husband and wife and the estate has not been divided, the court usually determines that one of the husband and wife has acquired the right to expect the share of the estate based on inheritance, and does not divide the specific estate physically during divorce, but decides that after the actual division of the estate, the other party has the right to claim separately the share of the joint property of the husband and wife. If the value of the estate can be determined and other heirs have no objection, some courts will compensate at a discount in divorce cases. According to the judgment of Ningbo Ninghai Court (2011) Yong Ning Min Chu Zi No. 1335 (property dispute after divorce between Chen Moumou and Xiang Moumou), the undivided house at the time of divorce was auctioned off, and the court ruled that the plaintiff received 235000 yuan and the defendant received 285000 yuan on the auction price-the property not disposed of at the time of divorce can be divided separately afterwards, and the claim period starts from when the right can be exercised.

In practice, if one party claims that the property belongs to the joint property of husband and wife after reaching an agreement on the division of the estate with other heirs during divorce proceedings and acquiring the property, the court usually examines the time when the inheritance starts, whether the division of the estate is completed during the marriage, and whether there is a will that clearly belongs to only one party. If excluded without a will, the acquired share of the property will be divided as the joint property of husband and wife, and wife, and wife, and wife, and wife, and wife, and wife, and wife, and wife, and. According to the Ningbo Zhenhai Court Xu and Chen Mou after the divorce of the property dispute judgment, the registration of the property under the names of both parties to one party, the direction of the other party to pay a discount compensation of 744362.67 yuan-has been determined to belong to the property at a present value discount compensation, is a common way for Ningbo courts to deal with the division of property.

7. Risk Alert

  • direct division of the estate of others in divorce proceedings: other heirs are not parties to the divorce case and the court cannot usually dispose of their rights.
  • There is no distinction between the beginning of inheritance and the division of the estate: the two time nodes determine whether the property belongs to the common property and cannot be confused.
  • Ignoring the exclusion clause of the will: the will clearly belongs to one party's estate and does not belong to the joint property of the husband and wife.
  • No agreement on how to deal with the division of the estate: the actual division of the estate after divorce, the other party to sue again time-consuming and labor-consuming.
  • Exceeding the statute of limitations: The three-year statute of limitations may be exceeded if the estate is not discovered or claimed in time after the actual division of the estate.

8. FAQ

if the spouse's parents die and the inheritance is divorced before it is divided, can I divide the inheritance?

The decedent's estate cannot be divided directly in divorce proceedings, but one spouse can claim the right to expect a share of the inheritance. If the inheritance begins during the marriage and is excluded without a will, the property interest corresponding to the expectation right belongs to the joint property of the husband and wife.

What will the court do if the division of the estate is not completed at the time of divorce?

The court usually decides to deal with the estate separately after the actual division, or to compensate at a discount when the value of the estate is determined and other heirs cooperate.

The will states that the property is only for one spouse, can I share it?

Can't. The property determined in the will to belong to one party belongs to the personal property, does not belong to the joint property of the husband and wife, and the other party has no right to divide it in the event of divorce.

After the divorce, the inheritance is divided. Can we claim it again?

You can. After knowing or should have known of the actual division of the estate, a post-divorce property dispute may be filed within three years, requesting the division of the share of the joint property of the husband and wife.

Practical Experience of 9. Lawyers

if one of the parents dies and the inheritance is not divided, the two will divorce. Whether the inheritance can be regarded as common property depends on whether the inheritance has started and whether the inheritance has actually been divided. Inheritance begins at the time of the decedent's death, from which time the estate is shared by all the heirs, and before the division is completed, one of the spouses acquires the right of expectation of the share of succession, rather than the ownership of a house or a deposit. Therefore, divorce usually cannot directly divide the specific inheritance as common property, but only this expected benefit can be dealt. Make this clear first so that you don't have unrealistic expectations of how much you can divide.

The processing path should be linked to the inheritance progress. If the estate has been divided before the divorce, the part of the share usually belongs to the common property of the husband and wife and enters the scope of divorce division. If it is still in a common state, it is necessary to resolve the analysis of the property before talking about how to divide it between husband and wife. The analysis of property depends on the attitude of other heirs: if they all approve the share, they can determine the share through negotiation or litigation. In other words, the pace of processing this part of the estate is largely not determined by the divorcing parties themselves.

From a preventive point of view, a few points should be paid special attention. If the decedent has a will and makes it clear that a certain property belongs to only one of the husband and wife, this part does not belong to the common property and the other party has no way to claim it. Therefore, it is the first step to verify whether there is a will and how to write the content. If the heir gives up the inheritance within the marriage, whether it will affect the rights and interests of the spouse, it is generally judged by the time of giving up, the reason and whether there is malice, which can not be taken for granted. The practical advice is to find out the inheritance relationship, the scope of the estate and the opinions of other heirs as soon as possible, to negotiate a fixed share as soon as possible, to turn the uncertain expected interests into clear property rights and interests, and then to deal with the divorce property calmly.