Insights

Ningbo will leave property to "extramarital partner", effective?

Ningbo Author：LuXu WANG

If a cohabiting partner other than the spouse is designated as a beneficiary in a will, is such a will valid? There is no uniform answer to this question. In judicial practice, some courts have invalidated a bequest in whole or in part on the grounds of its contravention of public order and good morals, while others have recognized the testator’s freedom to dispose of personal property, invalidating only the portion that encroaches upon the spouse’s share, thereby upholding the validity of the remaining part. What typically determines the validity of a bequest is not the mere status of being an “extramarital partner,” but rather specific circumstances, such as whether the testator is disposing of personal property or marital joint property, whether the bequest is made in exchange for cohabitation outside marriage, and whether the beneficiary has otherwise provided support and care.

1. Testamentary freedom and its limits

Article 1133 of the Civil Code stipulates that a natural person can make a will to dispose of his personal property in accordance with the provisions of this law, and can appoint an executor; he can make a will to designate his personal property to be inherited by one or more of the legal heirs, or he can make a will to give his personal property to the state, collective or organizations or individuals other than the legal heirs. Leaving one’s property to a “non-marital partner” who is not a statutory heir constitutes a bequest under the law. The beneficiary of the bequest is not a testamentary heir, and their rights become effective only upon express acceptance of the bequest.

Freedom of testation is the embodiment of private autonomy in the field of inheritance, but it is not without limits. At least three limitations are worth noting. First,Must not violate mandatory provisions of law or public order and good morals.. Article 153, paragraph 2, of the Civil Code provides that civil legal acts that contravene public order and good morals are void. Second, the reserved portion shall not be deprived. Article 1141 of the Civil Code provides that a will shall reserve a necessary share of the estate for heirs who lack the capacity to work and have no source of livelihood. Third, only the testator’s personal property may be disposed of; the testator has no authority, through a will, to dispose of the surviving spouse’s share in the marital community property.

The freedom of disposition is subject to mandatory regulations, and a donation contract dispute heard by the Beijing No. 1 Intermediate People's Court is an example: the donor and the recipient voluntarily signed the "House Gift Agreement", but because it involves the transfer of the right to use rural homestead, the transferee is not a member of the collective economic organization and violates the provisions of the Land Management Law on the identity restriction of the right to use homestead, and the court finally finds the agreement invalid. It is evident that even if a disposition of property is made voluntarily and with genuine intent, it may still be deemed invalid if it contravenes mandatory legal provisions.

2. Why "bequests to extramarital partners" often spark controversy

The root of the controversy lies in the tension between testamentary freedom and the order of marriage and the family. On the one hand, a will is a unilateral act by which the testator disposes of his or her personal property, taking effect upon death, thereby reflecting respect for the principle of autonomy of will; on the other hand, Article 1043, paragraph 2, of the Civil Code provides that spouses shall be faithful to each other, respect each other, and care for each other. A person who is married and cohabits with another person violates the duty of fidelity advocated by this provision.

Thus, a clash of two distinct lines of reasoning emerged regarding the issue of “bequeathing property to an extramarital partner.” First, extramarital cohabitation and a bequest should be evaluated separately, as they constitute two independent civil legal acts. The bequest itself merely involves the disposition of property and does not, by virtue of cohabitation alone, automatically violate public order or good morals. Secondly, when the two are considered together as a whole, it is held that if the purpose of the bequest is precisely to maintain or reward an extramarital cohabitation relationship, then both the content and the purpose of the bequest contravene public order and good morals and should be deemed invalid pursuant to Article 153, paragraph 2.

The judge of the Supreme People's Court made it clear in the interpretation of the (II) of Interpretation of Marriage and Family in the Civil Code: if one of the spouses gives the joint property to others for the purpose of bigamy, cohabitation with others and other purposes that violate the duty of loyalty between husband and wife, the other party claims that the act is invalid due to violation of public order and good customs, it should be supported. This approach suggests:The applicable legal basis should be “invalidity due to violation of public order and good morals,” rather than simply denying the validity of the contract on the ground of “lack of authority to dispose.”, because unauthorized disposition no longer automatically affects the validity of the contract.

3. Two Types of Judicial Decisions in Practice

Inducing the public judgment, two types of confrontational treatment results were formed around "leaving property to extramarital partners in a will.

(I) A type of judge: declares the bequest invalid.

The most prominent example is the Luzhou bequest case, which is known as “China’s first case involving public order and good morals.” The testator, Huang, and the defendant, Jiang, were husband and wife. After 1996, Huang cohabited with the plaintiff, Zhang, in a rented residence. In 2001, Mr. Huang executed a will bequeathing half of his housing provident fund, subsidies, bereavement benefits, and proceeds from the sale of his house to Ms. Zhang, and had the will notarized. The court held that although the will was a true expression of intention and legal in form, its content and purpose violated the law: Huang made a will based on the illegal cohabitation relationship with Zhang, and gave the estate and the property belonging to the spouse to others, which damaged the spouse's legal right to inherit property and violated public order and good customs, which should be invalid. The first-instance court dismissed Zhang’s claim, and the second-instance court upheld the decision.

This type of ruling is not an isolated case. In a case heard by a court in Zigong, Sichuan, the decedent maintained a long-term illicit extramarital relationship with the defendant during the marriage and, prior to his death, executed a will bequeathing all remaining assets to the defendant. The court held that the donation of the joint property of the husband and wife to others without the consent of the spouse damages the legitimate rights and interests of the spouse without fault, which is beyond the scope of the needs of family life, and the "will" was made on the basis of an improper relationship between men and women, so it held that the will was invalid. Numerous similar cases reported in the media have also invalidated bequests on the grounds of undermining public morals and disrupting public order and good customs.

(II) Type I referee: determines validity or partial validity.

In contrast, the opposing court emphasizes the independent value of testamentary freedom and treats property on a differentiated basis. In a case heard by a court in Zhejiang Province, Lin lived with Li for a long time during the marriage relationship with his spouse Gong, and made a will to bequeath part of the property to Li. The court holds that,Citizens have, in accordance with the law, the right to make a will to dispose of their personal property and may, by will, bequeath such property to persons other than statutory heirs; cohabitation outside marriage and the act of making a will are two independent civil acts, and the act of bequest itself does not violate public order and good morals., it was therefore confirmed that the will represents the true intention of the testator, and Li is entitled to the bequest. At the same time, the court determined that the property in dispute is marital joint property; accordingly, the disposition of the portion of the property belonging to Mr. Gong in the will is invalid. Half of the monetary compensation for the house shall be awarded to Mr. Gong, and the remaining funds shall be distributed in accordance with the will.

Another option is a legacy support agreement. Some judges have decided that bequest and maintenance agreements between extramarital cohabitants can be legal and effective: on the one hand, illegal cohabitation is distinguished from bequest, and the former does not mean the latter; On the other hand, the agreement is not understood as "the exchange of money and extramarital cohabitation", but is reduced to "the exchange of money payment and the obligation of birth, death and burial", so such agreements may not be invalid. There is also a reflection on the doctrine: the denial of cohabitation outside marriage in the marriage law is mainly reflected in the compensation for fault damages at the time of divorce, and does not restrict the right to dispose of personal property by will.

4. Key distinguishing point: Is the property being disposed of individual property, or marital joint property?

From the two types of judicial decisions mentioned above, several key distinguishing factors can be identified, which often directly determine the validity of a bequest.

  • Does the disciplinary action apply to the individual’s personal property or to the couple’s joint property?If the disposition pertains to the testator’s personal lawful property, the bequest itself is more likely to be upheld; if it involves marital joint property, the portion corresponding to the spouse’s share is generally deemed invalid.
  • Whether the bequest is based on an extramarital cohabitation relationship.If a bequest has an obvious transactional nature, that is, if it is made subject—explicitly or implicitly—to the continued maintenance of an improper relationship, it is more likely to be deemed contrary to public order and morality and thus invalid.
  • Whether the beneficiary has other facts of being supported, cared for, or served.The fact that the parties lived together for a prolonged period, during which the legatee provided care during illness and arranged funeral matters, may support the validity of the bequest and is regarded as a legitimate consideration independent of the cohabitation relationship.
  • Whether it involves a substantial impairment of the spouse’s rights. The higher the degree to which a spousal share is allocated or the spouse’s inheritance interest is deprived at position , the more likely it is to be invalidated.

Public cases involving “lifetime gifts to a third party outside the marriage” also serve as useful references for understanding the validity of testamentary gifts. In the case heard by the Xinhui District Court of Jiangmen City, Guangdong Province, Zhao and his spouse Wen did not agree on a separate property system. During the period when Zhao maintained an extramarital relationship with Zhang, Zhao transferred money to Zhang and the real estate company in several transactions and paid a total handling fee of 410191.39 yuan to buy a house and parking space for Zhang. The court held that the act violated public order and good morals, and that Mr. Zhao, without his spouse’s consent, unilaterally gifted a substantial amount of marital property to another party, thereby constituting an unauthorized disposition. As marital property is jointly owned and indivisible, the gift in question is deemed wholly invalid, and the court ordered Mr. Zhang to return the full amount to Ms. Wen. The case heard by the Zhengan County Court in Guizhou also found that Sun Moumou donated the common property to Liang Moumou free of charge due to the needs of daily life, damaging the ownership and disposition rights of his spouse Kong Moumou. The donation was invalid and returned to 231826.76 yuan. These judgments demonstrate that the courts adopt a negative stance toward property dispositions based on extramarital affairs and tend to require full restitution.

5. The rights of the spouse's other half

No matter whether the bequest is finally deemed invalid or not, the spouse has independent property rights, which is easy to be ignored.

Article 1153, paragraph 1, of the Civil Code provides that, with respect to property jointly owned by spouses, unless otherwise agreed, during the division of an estate, one half of such jointly owned property shall first be allocated to the surviving spouse, with the remainder constituting the estate of the deceased.Accordingly, upon the death of one spouse, the first step in determining the scope of the estate is to separate out the surviving spouse’s one-half share of the marital property; only the remaining portion constitutes the decedent’s estate and may be disposed of by will. If the spouses have not made a written agreement regarding property acquired during the marriage, the scope of their joint property shall be determined in accordance with Article 1062, and one half of such property shall then be allocated to the spouse. Article 1062 also stipulates that both spouses have equal rights to manage and dispose of jointly owned property.

This gives rise to two remedies. First, if the will disposes of the joint property of the husband and wife, the spouse may claim that the disposition involving their own share is invalid, because the testator has no right to dispose of property that does not belong to them. Second, with regard to the scope of return, the judge of the Supreme People's Court pointed out in his interpretation that the common property of husband and wife is shared by both parties without any share, which is different from half of the ownership, and that the wrong party may have less or no division in the division of divorce, so the other party has the right to demand full return, not just half. In the context of a will, a surviving spouse is entitled to at least half of the marital property; these two positions are not mutually exclusive and depend on the specific facts of the case and the degree of fault.

Sixty days 6. the bequestee

Even if the will is deemed valid, the beneficiary does not automatically acquire the property as of the date the will takes effect; they must first satisfy a time‑based requirement.

Article 1124, paragraph 2, of the Civil Code provides that a legatee shall, within sixty days after becoming aware of the bequest, indicate whether it accepts or renounces the bequest; if no such indication is made by the expiration of the period, it shall be deemed to have renounced the bequest.The right to a bequest differs from the right of inheritance; it is not automatically acquired upon the testament’s entry into force, but only arises when the beneficiary expresses an intention to accept the bequest. This 60-day period shall be calculated from the date on which the legatee becomes aware of the bequest; it is a statutory limitation period that does not suspend or interrupt, and “awareness” does not include what ought to have been known.

In terms of procedure, acceptance of a bequest must be made expressly; mere silence is deemed to constitute a waiver. A waiver, on the other hand, may be made either expressly or impliedly. Where the law does not mandate a written form, a legatee may express its acceptance to the heirs, the executor of the will, the estate administrator, or even the people’s court; acceptance may also be effected through notarization of the bequest, actual possession and management, or by filing a lawsuit. For extramarital partners, these 60 days are particularly critical: if they fail to declare their position beyond the time limit due to litigation, identity concerns or poor information, they may lose their right to bequeath even if the will itself is valid.

7. How to assess and respond: the different stances of the three parties

When confronted with a will that bequeaths assets to an extramarital partner, the interests and approaches of the testator, the spouse, and the beneficiary differ, and the priorities in handling such cases also vary.

  • For the party who intends to make a will: dispose of personal property as much as possible, and fix personal property attributes through property agreement, property source certificate and so on; avoid writing the bequest on the condition of maintaining extramarital relationship; try to use notarized wills, lawyer's witness and other forms to improve the reliability of the form; if the other party does have long-term support and care facts, pay attention to keeping evidence. However, it should also be clear that even if the formal requirements are met, any provisions involving marital joint property or consideration paid to a third party outside the marriage may still be deemed invalid.
  • For the spouse: the first step is to check the scope of the estate and judge how much of the property being disposed of belongs to the common property of the husband and wife; the second step is to claim the right to own share, or to divide half of the property before the division of the estate according to Article 1153; the third step is to confirm that the bequest is invalid if the content and purpose of the bequest is contrary to public order and good customs, the direction of proof includes the cohabitation relationship outside marriage, the identity of the bequestee, the flow of funds, whether the maintenance relationship is the consideration, etc.
  • For the legatee: be sure to pay attention to the 60-day exclusion period, make the express expression of accepting the bequest in time and keep the service evidence; distinguish the personal property and common property in the estate in the litigation, and claim the freedom of the will and the fact of existing support and service to avoid being denied as a whole.

8. Practice Tips

If what is involved is not a posthumous bequest, but ratherBefore his death, he had already gifted his property to a third party outside of his marriage., can refer to the revocation and return path processing.According to Articles 1062 and 157 and relevant judicial interpretations, if one of the spouses gives a large amount of the joint property of the husband and wife to a third party without the consent of the spouse and not because of the daily needs of the family, the spouse may claim that the gift is invalid and demand its return. If the party who has acquired the property cannot return it, it shall be compensated at a discount. In the two previous cases, the gift was confirmed to be invalid and ordered to be returned on the grounds of violating public order and good customs and harming the rights and interests of spouses.

In addition, there are several general hints worth noting. The first is the choice of path: under the framework of the Civil Code, the core reason for denying such sanctions is that they are invalid in violation of public order and good customs, rather than simply having no right to dispose of them. Second, the property agreement: the husband and wife may implement the separate property system through a written agreement to reduce the dispute over whether it is common property, but the agreement shall not harm the interests of creditors and shall not oppose a bona fide third party. Third, the sense of evidence: whether the claim is valid or invalid, the source of property, the flow of funds, the fact of support, the form of will and other evidence will directly affect the outcome of the decision. Fourth, it is necessary to keep a copy: even if the will is free, it cannot deprive the heir who lacks the ability to work and has no source of income of the necessary share of the inheritance.

class case reference: extramarital relations violate public order and good customs, which will affect the evaluation of the distribution of inheritance and the effectiveness of bequests. In some cases, the decedent cohabited with others and gave birth to children in marriage, and the court found that his behavior violated public order and good customs, and divided the party as appropriate when dividing the estate; at the same time, it is clear that children born out of wedlock have inheritance rights in accordance with the law. Trial court: Beijing Shunyi District People's Court of First Instance and Beijing No. 3 Intermediate People's Court of Second Instance:(2024) Beijing 03 Min Zhong No. 9204; Source: 2026 Cases of Chinese Courts, Disputes over Marriage, Family and Inheritance.

9. Frequently Asked Questions

Question 1: Will leave all the property to the extramarital partner, must be invalid?

No. Whether it is effective depends on the specific circumstances. If the will is disposed of personal property, there is no extramarital cohabitation as a consideration, some courts will recognize the freedom of the will, the bequest is valid or partially valid, if the disposal of the joint property of the husband and wife, or to continue to maintain the extramarital relationship as a condition, it is more likely to be found to violate public order and good customs and invalid.

Question 2: If the disposition of the will is entirely the personal property of the testator, will it still be deemed invalid?

Not necessarily. The key issue is whether the disposition in question violates public order and good morals. If the property is indeed the legal property of the individual and the bequest is not to harm the rights and interests of the spouse or to maintain an improper relationship, the will has greater free space; however, if the purpose or content of the bequest points to the extramarital cohabitation relationship itself, it may still be denied.

Question 3: Can a spouse claim that the will is completely invalid, or only half of it?

The spouse can at least claim the right to the share of the common property of the husband and wife. According to Article 1153, half of the common property shall be distributed to the spouse first when the estate is divided. If it is further asserted that the bequest as a whole is invalid for breach of public order and good morals, the return of all property may be required. The two are the relationship between half of the guarantee and the fight for the whole, depending on the case and the evidence.

Question 4: The legatee does not know the contents of the will. When does the sixty days start?

from the date on which the bequestee knew of the bequest, not from the date of the testator's death or the date on which the will was made. This period is a statutory limitation period and shall not be suspended or interrupted. In practice, the initial limit is usually 60 days after the death of the testator, and if it is claimed that the time of knowledge is late, it is necessary to prove this.

Question 5: Will it affect the effectiveness of the legacy if one party is sick and the other party takes care of it for a long time and handles the funeral affairs?

will have an impact. The facts of living together for a long time, caring for the sick, and handling the burial of life and death may constitute a legitimate consideration independent of the cohabitation relationship and support the validity of the bequest or bequest support agreement.

Question 6: The house and money have been given to the third party before his death. Can the spouse recover it after his death?

You can give it a try. The spouse may claim that the gift is invalid because it violates public order and good customs and damages the joint property rights and interests of the husband and wife, and require the donee to return it; if it cannot be returned or is not necessary, it shall be compensated at a discount. Such claims are likely to be upheld in judicial practice.

10. Practical Legal Insights

Leave the property to the cohabiting partner other than the spouse through a will. This kind of arrangement is highly controversial in practice, but the result is not simply "valid" or "invalid". What really decides the direction is often whether the testator disposes of personal property or the common property of the husband and wife-if the spouse's half of the common property is moved, the excess usually cannot stand. As for whether the bequest itself is affected, it depends on the specific circumstances, such as whether the bequest is mutually valued with cohabitation outside marriage, and whether the bequestee does have the fact of support and care. Identity itself is not a dead hole, the disposition boundary is the key.

There is another limit that is easy to be ignored for this kind of legacy: the legatee should make a clear acceptance within 60 days after knowing the legacy, and silence is regarded as a waiver. So even if the will seems to be in their own favor, the bequeathed people do not think that "lying flat" can get, missed 60 days basically no room for recovery. The most important step in practice is to keep good evidence of the time point of knowing the bequest, express acceptance in writing and notify the heirs in time. If a spouse believes that he or she has disposed of his or her share, he or she should also claim as soon as possible to separate the common property portion from the bequest.

When it comes to the inheritance arrangement of extramarital partners, family negotiations are often the most difficult. It is suggested that the boundary of the common property of husband and wife should be clearly defined before the dispute breaks out, and if necessary, the part belonging to the spouse should be fixed first through the marital property agreement and the will to reduce the space of being challenged behind. If such a will has appeared, the parties should not rush to tear their faces, first judge the nature of the property, the form of the will, whether the bequestee has expressed his position, and then decide whether to negotiate compensation or go through the procedure. Straightening out the three things of "what is individual, what is common, and whether the bequestees have accepted it in a timely manner" is closer to an enforceable solution than simply arguing about moral right and wrong.