Insights

Is it valid for one party in a divorce in Ningbo to renounce their right of inheritance? Three requirements.

Ningbo Author：LuXu WANG

In divorce proceedings, one party suddenly renounces the property left by his parents, and the other party often thinks that this is deliberately reducing the joint property of the husband and wife. However, the abandonment of inheritance rights is different from the disposition of the joint property of the husband and wife. It involves the right of identity and the interests of creditors. The court should look at three core elements when reviewing: the time of abandonment, the authenticity of the meaning, and whether it harms the legitimate rights and interests of others.

The Legal Nature of 1. Abandonment of Inheritance

the right of inheritance is a kind of expectation right, which is transformed into a vested right after the beginning of inheritance. The heir shall have the right to waive the inheritance within the time limit prescribed by law, after which the heir shall no longer participate in the distribution of the estate, and his share shall be obtained by other heirs in accordance with the law. Article 124 of the Civil Code stipulates that if the heir renounces the inheritance after the beginning of the inheritance, he shall make a written statement of renunciation of the inheritance before the disposal of the estate.

1. Abandonment is an act of identity or property.

The renunciation of the right of inheritance has the dual attributes of identity behavior and property behavior. It is a disposition of inherited status, as opposed to a renunciation of ownership of existing property. Therefore, one of the spouses cannot, of course, claim that the other party's waiver is invalid on the ground of "damage to the common property of the husband and wife", but needs to prove that the waiver has malicious collusion, fraudulent coercion or obvious harm to the interests of creditors.

2. Period and Form of Abandonment

the waiver of inheritance must be made before the estate is disposed of and, in principle, in writing. If the waiver is expressed orally in the litigation, the court will record it and confirm it by the signature of the waiver heir. A waiver means effective when it reaches other heirs or administrators of the estate.

Does 2. waiver of inheritance affect spousal property

the renunciation of inheritance by one of the spouses during the normal duration of the relationship is usually not directly detrimental to the property rights of the spouses, as the estate has not yet been converted into the joint property of the spouses. After the commencement of inheritance and before the division of the estate, one of the spouses has only the right to expect the estate, not the defined common property. Thus, waiver of inheritance is in most cases an exercise of personal status rights that the spouses are not entitled to prevent.

1. Expecting benefits is not equal to real property.

Although the Civil Code provides that the proceeds of inheritance during the marriage are the joint property of the spouses, this refers to an estate that has actually been acquired or is expressly obtainable. Before the division of the estate, one party's waiver of inheritance only gives up the possibility of acquiring property and does not dispose of the real joint property of the husband and wife. This is the key boundary for the court to distinguish between effective waiver and malicious waiver.

Special Considerations in the Context of Divorce

during divorce proceedings, one party's waiver of inheritance significantly reduces the total amount of property that the other party may receive, so the court will increase the intensity of the review. If the waiver occurred shortly before the prosecution, the value of the estate is clear, and the parties have disputed the division of the property, the court may be inclined to find that the waiver was malicious. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of divorce cases in Ningbo involve the division of property, and the abandonment of inheritance shares during divorce proceedings is the focus of court review.

Review of the Effect of Abandonment of Inheritance in 3. Divorce

whether a party's waiver of inheritance is valid at the time of divorce, the court usually examines the following factors: whether the waiver occurred before the disposition of the estate, whether it was a true expression of intention, whether the parties had disputed the division of the divorced property at the time of the waiver, whether the waiver resulted in the apparent loss of property capacity of one party, and whether it was detrimental to the interests of creditors.

1. Determination of true meaning

if the waiver of inheritance is forced by family pressure, reached an agreement with other heirs in exchange for other benefits, or knowingly that the waiver will damage the rights and interests of the spouse, it may be deemed to be a non-true expression of intention. However, it is more difficult to prove, and evidence such as written agreements, chat records, audio recordings, and testimony of other heirs is required.

2. Whether it leads to an imbalance of interests

the court will measure the result of the abandonment: if one party has obvious difficulties in life after abandoning a huge estate and the other party cannot obtain reasonable property compensation, it may be determined that the abandonment harms the interests of the family; However, if the abandoning party has better economic conditions, a small share of the estate, or if the abandonment is to fulfill the maintenance promise to the decedent, it is more likely to be deemed effective.

4. Malicious Waiver and Creditor Revocation

if a party's waiver of inheritance is for the purpose of evading the obligation to pay property to the spouse or creditor, it may constitute a malicious waiver of property rights. Article 588 of the Civil Code provides for the creditor's right of avoidance, but the object of the right of avoidance is usually the debtor's waiver of claims, the transfer of property without compensation, etc. Whether the waiver of inheritance can be revoked by creditors is controversial in theory and practice.

1. Whether the spouse can exercise the right of avoidance

the majority view is that spouses cannot simply invoke the creditor's right of avoidance to revoke the other party's waiver of inheritance in the division of divorce property, because the right of inheritance expectation is not an existing property right. However, in exceptional circumstances, if there is a clear link between the waiver of inheritance and the division of the property of the divorce and the waiver is incapacitated as a result, the court may negatively evaluate the act in the division of the property.

2. Limited application of the creditor's right of avoidance

in the case of an individual creditor of one of the spouses, if the debtor evades the debt in bad faith by waiving the inheritance, and the inheritance is clearly available and the value can be determined, some judges support the creditor's withdrawal of the waiver. However, the premise is usually that the estate has been divided or the value is clear, and the right of pure expectation is more difficult to be the object of revocation.

5. give up the border with the family agreement

some families will sign an agreement before or after the death of the decedent, agreeing that a child will give up the inheritance in exchange for other compensation. Such agreements are generally valid if they are based on the true meaning and do not violate the mandatory provisions of the law. However, if the agreement is aimed at reducing the spouse's share in the event of divorce, it may be reviewed for harming the legitimate rights and interests of others.

1. Effectiveness of intra-family exchange agreements

for example, when the parents were alive, they agreed that the old house would be inherited by the eldest son, the second son would receive cash compensation, and the second son would give up the inheritance. The agreement is usually valid if it is made during the marriage and in no bad faith. However, if the second son gives up temporarily on the eve of divorce in order to transfer cash compensation to the eldest son, it may be regarded as malicious punishment.

2. Maintenance obligations and waiver of inheritance

if the heir renounces the inheritance in order to fulfill maintenance, burial arrangements or other family obligations to the decedent, the court will usually respect his choice. In this case, the abandonment of inheritance is justified and is not easily identified as malicious damage to the interests of the spouse.

6. case proof

in practice, one party waives the inheritance of the property left by the parents in writing during the divorce proceedings, and the court usually examines the time of the waiver, whether the estate has been divided, whether the waiver is a true expression of intention and whether it harms the legitimate rights and interests of the spouse. If the waiver occurs long before the prosecution, the estate has not been actually divided, and the waiver has a reasonable explanation, the court tends to find it valid, and if the waiver occurs after the intensification of the property dispute, the value of the estate is clear and there is no valid reason, some courts will evaluate the act adversely in the division of property. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, if one of the spouses waives the inheritance after the commencement of the inheritance due to personal debt, and the creditor claims avoidance, the court usually requires the creditor to prove that the estate is clearly available, the value can be determined and the abandonment has led to the debtor's insolvent. It is usually difficult to obtain support for the right to expect an estate that has not been divided and whose value is unknown. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

  • A simple denial of waiver from the perspective of common property: the right to inherit the expectation is not equal to the reality of common property and cannot be directly claimed to be invalid.
  • No objection before the estate is disposed of: once the estate is divided, the effect of renunciation of inheritance is more difficult to challenge.
  • Lack of malicious evidence: malicious evidence cannot be proved only by the time of divorce, and written agreements, chat records and other supporting evidence are required.
  • Ignoring the creditor's right of avoidance threshold: the right of expectation that has not yet been divided, the right of avoidance is usually difficult to establish.
  • The family agreement is not left in writing: the oral exchange arrangement is difficult to prove, and disputes are easy to arise after giving up.

8. FAQ

can one party give up inheritance in a divorce and the other party stop it?

generally cannot. Waiver of inheritance is an exercise of identity rights and the spouse has no right to directly block it. However, if it can be proved that there was malicious collusion, fraudulent coercion or harm to the interests of creditors, the act may be claimed to be detrimental to oneself in the division of property or related litigation.

Does giving up inheritance reduce the couple's joint property?

Before the actual division of the estate, the right of inheritance is only the right of expectation, and the abandonment of inheritance does not directly reduce the real common property of the husband and wife.

Under what circumstances will a waiver of inheritance be considered invalid?

If the waiver is not a true expression of intention, there is malicious collusion to harm the interests of spouses or creditors, or if it violates the mandatory provisions of the law, it may be found invalid or adversely evaluated.

Can creditors revoke the debtor's waiver of inheritance?

There is controversy. If the estate is clearly available and the value is determined, some courts support avoidance; if the estate has not been divided, the right of expectation is usually difficult to be the object of avoidance.

Practical Experience of 9. Lawyers

to judge whether a party's abandonment of inheritance counts or not, just focus on three elements: whether the time of abandonment is before the estate is processed, whether the meaning is true (generally required to be written and clear), and whether it harms the legitimate rights and interests of others. In divorce proceedings, one party suddenly renounces inheritance, and the other party's first reaction is often "he is deliberately reducing the common property". However, this suspicion itself is not evidence. It is useless to rely on the sentence "he must have done it on purpose". Only by looking for materials around these three elements can the claim be put into practice. When the evidence is temporarily insufficient, it is better to keep the inheritance clues first than to rush to conclusions.

The boundary between effective and ineffective lies in motivation and consequence. A true voluntary, written waiver that does not harm the interests of others (e. g. creditors) is generally valid; it may be denied if the purpose of the waiver is to avoid debt or to harm the legitimate property interests of the spouse. There are several things to be fixed in operation: the time and form of the waiver statement, whether other heirs know about it, and where the inheritance actually went after the waiver, so as to judge whether this is "called waiver but actually continues to benefit". This is exactly the problem in many cases.

If the other party's waiver does harm your property interests, you can claim that this waiver does not have effect on your party in the divorce or property analysis procedure, or claim rights in the subsequent re-division, while preserving the inheritance clues, do not let the property, deposits, equity in the dispute period is disposed. We should also remind the parties that giving up inheritance itself is a kind of status punishment. Don't expect to grasp the sentence "he gave up" and everything will be fine. The key to this kind of dispute is to find out the time point and real motive of giving up.