Insights

Will the divorce of the legacy left by the old people in Ningbo be divided?

Ningbo Author：LuXu WANG

During the marriage, one party inherited the inheritance of the elders. Is this common or personal when divorcing? The key depends on whether the decedent has "designated only one party". If not, it is usually common. But in reality, the real difficulty is not qualitative, but once the inheritance money is mixed with the family account, the source is unclear.

General characterization of 1. inheritance after marriage

property inherited during the marriage shall, in principle, belong to the joint property of husband and wife. In other words, the inheritance of marriage, there is no special agreement, divorce is generally included in the division. The starting point of this rule is that property acquired during the marriage is presumed to be joint, unless otherwise specifically provided by law, and it is the proceeds of inheritance that are typically covered by this presumption.

Time node in marriage

the key to judge is that the inheritance occurs during the marriage. Inheritance that begins within marriage, the proceeds are usually pushed into common, regardless of the actual division. Even if the decedent dies for many years and the estate is not transferred until the divorce, as long as the time of the beginning of the inheritance falls within the marriage, the nature is still treated as marital income. Many people mistakenly think that "it is still personal before the transfer of ownership". This judgment is not stable, and the transfer time does not determine the nature of the property.

A 2. will designates only one party.

If the will clearly indicates that the estate belongs to only one of the spouses, it is the personal property of that party and the divorce is not divided. "Explicit designation" is the key to excluding common. The law lists "the property determined to belong only to one party in the will or gift contract" as the personal property of one of the spouses, so whether the wording falls to the words "only to the individual" directly determines the direction of attribution.

Articulate clearly

the will only write "inherited by the son" does not necessarily mean that it belongs only to the individual. It is safe to embody the meaning of "not as the common property of husband and wife" or "only to a certain individual. In practice, if it is simply written by a child, the court may still determine whether the spousal interest is excluded in the context, and there is uncertainty. The safest way to write it is to directly state that "it shall be inherited by a certain individual and shall not be regarded as the joint property of the husband and wife with his or her spouse", and to avoid subsequent disputes in one sentence.

3. of statutory succession

if there is no will in accordance with the statutory inheritance, the proceeds of inheritance within marriage shall, in principle, be common. At this time, whether the source of inheritance is parents or grandparents does not affect the common nature, unless specified above. That is to say, after the death of the elders did not leave a will, according to the legal succession of the spouse to obtain the estate, in principle, into the category of common property, will not automatically become an individual because "is given by the mother's family.

Distinguish with premarital property

if the inheritance begins before the decedent's marriage and the actual acquisition of the property before marriage, it may be an individual. For example, if one of the parents died before marriage, the inheritance was completed and registered in the personal name, this part is usually considered to be personal property before marriage.

The Influence of 4. Abandonment and Acceptance

if one party explicitly renounces inheritance during marriage, it does not involve the division of common property; if the inheritance is accepted, the property enters the common category and the divorce is handled jointly. A waiver is premised on a clear expression of intent, and silence or inaction is generally not recognized as a waiver. Once acceptance is made, even if the estate has not yet been actually realized, one of the spouses already has a potential joint interest in that part and needs to be considered together in the event of divorce.

5. inheritance is mixed with property

property determined in a will or contract of gift to belong only to one party is the personal property of that party; if no such designation is made, the proceeds of inheritance during the marriage shall, in principle, be jointly owned by the spouses. Most of the real disputes occur after the inheritance money is mixed with the family account, and the source is difficult to restore. For example, an inheritance deposit is transferred to a salary card shared by husband and wife, which is then used for daily expenses, house purchase and financial management. It is almost impossible to separate it when divorcing. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to accept, and the source restoration will eventually fall on written documents such as bank running water.

A word in a will determines attribution.

If an old man wishes to leave his property only to his children, it is safest to state in his will that it belongs only to him personally. After the inheritance is obtained, a separate account is opened and stored, which can also avoid the dilemma of mixing evidence in the future. Depositing inheritance money separately and not mixing it with household expenses is the lowest cost and safest way to protect it, far more than fighting a lawsuit afterwards.

How is the share of 6. inheritance divided in a divorce?

The share of inheritance into the common property is generally treated as common property when the divorce is divided, which is equal in principle, but will be adjusted in the light of the source of the property, the contribution of both parties, the support of children and other factors. Not all inheritance shares will be mechanically one and a half, and the court will look at the share of the estate in the common property, whether it stems primarily from one of the elders, and the need to secure the lives of the children. For inherited property, it also involves different paths of appraisal, discount compensation or physical division, and the choice of path directly affects the benefits that both parties ultimately receive. The "Answer" of the People's Court of Zhejiang High Court clearly states that the divorce lawsuit is a compound lawsuit, and the defendant does not need to file a separate counterclaim for the division of common property, and the inheritance share can be claimed to be divided together with the divorce lawsuit.

Discount compensation is a common path.

Inherited property is usually not suitable for physical split, in practice more than one party to obtain property rights, to the other party to pay discount compensation. The amount of compensation is generally calculated by reference to the appraised value, net of outstanding loans, in proportion to the amount due. If neither party is able to pay the discount, it may also be possible to split the price by selling it when the conditions are met, but the process is longer and more variable, and it is often delayed until the child reaches adulthood.

7. case proof

in practice, the woman legally inherits her parents' real estate during marriage, with an assessed value of about 3.2 million yuan. At the time of divorce, it is recognized as the joint property of husband and wife, and the man gets about 1.6 million yuan's share of the corresponding rights and interests.

In practice, the will specifies that the property is inherited by the daughter and does not belong to her spouse. In the divorce, the property (worth about 2.8 million yuan) is not divided as common property and belongs to the woman.

In practice, one party's marital inheritance deposit of 800000 yuan is mixed with the family account. When the divorce is divided, it will be treated as common property, and the other party will receive about 400000 yuan. The court suggested that the evidence should be kept separately to avoid mixing disputes.

In Ningbo local referees, undivided properties are mostly settled by one party acquiring property rights and paying the other party a supplement. According to the public case of property dispute after the divorce between Wang Moumou and Zheng Moumou in Ningbo Court, some houses were common property, and it was decided that the houses under the defendant's name belonged to the plaintiff and the plaintiff paid the compensation of 328500 yuan. According to the property dispute case after the divorce between Xu Mou and Chen Mou in Ningbo Zhenhai Court, the property registered under the names of both parties belongs to the plaintiff and the plaintiff pays the defendant 744362.67 yuan; according to Ninghai Court (2011) Yong Ning Min Chu Zi No. 1335 Chen Moumou and Xiang Moumou's property dispute case after divorce, after the undivided house was auctioned, the plaintiff was sentenced to 235000 yuan and the defendant to 285000 yuan. After the marriage inheritance property enters the division, the local practice also takes the discount compensation or the sale price as the common path.

8. Risk Alert

  • the inheritance must be personal property.
  • The unexpressed will was pushed into common.
  • Inheritance funds within marriage are used in the same way as family accounts.
  • Ignore the time node at which inheritance starts.
  • Mistake not to declare your position as a waiver of inheritance.
  • Only when the divorce to supplement the evidence, has long been unable to restore the source.

9. FAQ

is inheritance common after marriage?

Generally. In principle, the proceeds of inheritance within marriage belong to the joint property of husband and wife, and those not specially designated shall be included in the division.

How not common?

The will expressly specifies that it belongs only to one of the spouses, and the meaning is clear, stating that it is not the joint property of the husband and wife.

What about statutory inheritance?

The legal inheritance of an intestate, the marital income is usually common, and the source of inheritance does not affect the common nature.

Is it enough to write "inherited by the son?

Not clear enough. It should reflect the meaning that it belongs only to the individual and not to the common, and the wording should fall to "only to so-and-so individual".

Practical Experience of 10. Lawyers

inheritance of elders during marriage, divorce is common or individual, first see if there is a designated only one party. If there is no clear designation, in principle, it shall be treated as common property. Therefore, the party who wants to keep the estate should first find the will or the corresponding written materials. The party who wants to claim division should check whether the will is true, valid and has no formal defects. Once this characterization is clear, there will be a direction for how to talk about it and how to give evidence later.

The real difficulty in reality is often not qualitative, but mixed. As soon as the inheritance arrives, it goes into the family's shared account, which is mixed with wages, household use and investment, and the source is unclear. It is recommended that from the beginning of inheritance, separate storage, separate bookkeeping, keep the complete flow of water, separate the personal inheritance part and family expenses. If it involves houses, equity and other properties that need to be registered, the transfer and change of ownership should also be kept up, otherwise the agreement and the facts will not match, and it is easy to fall into passivity when claiming, and it is clearly reasonable and unclear.

In practice, attention should also be paid to "when it is obtained": inheritance begins to occur within marriage. Even if the transfer time is before divorce, it is mostly treated according to the marital income in nature, so don't use "not yet transferred" as a shield. In litigation, if the estate has actually been divided, it may be claimed directly; if it has not been divided, the court may first deal with the marriage relationship and the share may be settled in a separate case. When negotiating, it is more effective to put the inheritance and other common property on a plate as a whole and exchange the overall plan for the overall interests than to stare at something.