How to allocate the obligatory spousal share in the inheritance?

The concept of marital share

The Family Code of the Russian Federation in Article 34 gives the concept of joint property of spouses. It is assumed that everything acquired during the marriage and until its end will be considered joint property.

The legislation also provides for some exceptions. Thus, property acquired through gratuitous transactions will not be considered common, like some personal belongings. The spouse can also prove that he acquired the property with personal funds. For example, from the sale of property received before marriage registration.

Even if one of the spouses had less income or no income at all, he is considered to have made other contributions, such as running a household. It is possible to reduce a spouse's share, but only through a judicial procedure.

The general procedure is not used if a marriage contract was concluded between the spouses. It may indicate other shares, the size of which has been agreed upon by the husband and wife.

Refusal to allocate spousal share

In cases where the allocation of a share in kind is impossible for a number of reasons, one of the spouses has the right to demand from the other payment of monetary compensation for his part of the property.

Why is it necessary to allocate a share?

In practice, the allocation of the spouse's share may be required both by the second spouse and by third parties. The following situations are allowed:

The claimant in enforcement proceedings may demand the allocation of a share in property acquired during the marriage if personal property is not enough to fulfill obligations. The corresponding initiative will be taken either by the collector himself or by an employee of the bailiff service who is involved in the proceedings.
As part of the bankruptcy procedure, creditors may demand the allocation of a share and its inclusion in the bankruptcy estate. However, the action is not implemented precisely within the framework of arbitration proceedings. The decision is made by a court of general jurisdiction and can subsequently be used in bankruptcy.
A share in the inheritance can be allocated after the death of a spouse. It is assumed that even what was formally registered, for example, in the name of the husband, half belongs to the wife. The allocation of a share will allow you to reduce the inheritance mass, after which only the remaining part will be distributed among the heirs of the first priority (between the spouse, children and parents).

Any interested persons can make a demand for allocation. Most often this is a spouse or a creditor.

Rules for calculating the spousal share

As a general rule, the second spouse owns half of the property. But this is not always the case in reality.

First of all, you need to check the following factors:

whether a marriage agreement was concluded between the spouses. It may establish a different procedure for the distribution of shares. Such an agreement must be drawn up only in notarial form; any other procedure is unacceptable. The document is voluntary and can be canceled either in court or through the conclusion and certification of a new agreement;
whether the property was acquired using the personal funds of one of the spouses. For example, if the funds were obtained through the sale of property purchased before marriage. In practice, this situation is quite common.

The allocation of a share is carried out through the court; accordingly, the party who plans to do this must prepare calculations and evidence. The defendant has the right to try to challenge the application or change the share.

Read: Is a wife responsible for her husband's loans?

Allocation of spousal share during inheritance

When inheriting property by a spouse, the allocation of a share will be required so that other heirs of the first priority will not be able to lay claim to part of the property. We are talking about what legally belonged to the surviving spouse during the period of the marriage relationship.

It is assumed that all objects are shared ownership.

For example, a husband and wife bought an apartment with joint funds. The housing was registered in the husband's name. There was no marriage contract between them. After the death of the husband, there are three heirs - a wife and two children.

The heirs, in the absence of a will, claim the property in equal shares. However, dividing the entire apartment into three equal parts would be wrong.

First, the spouse must allocate half of the apartment as personal property. Only after this the remaining half is divided into three parts.

Another situation where the allocation of the marital share will be required is also related to inheritance. So, after the death of, for example, a wife, there are three first-line heirs, one of whom is the husband. During marriage, an apartment was purchased and registered in the husband's name. The wife's heirs may demand the allocation of a share from this apartment, despite the fact that formally it continues to be the property of the spouse.

Refusal of spousal share

Refusal of the marital share is permitted from the point of view of law. The procedure looks like this: After the death of one of the spouses, the second can either write a statement that he does not plan to allocate a share, or not take any action at all. He does not contact a notary and does not indicate that he is claiming a share, and does not go to court.

In such a situation, events can develop in two ways:

the property is divided only between the remaining applicants, the spouse does not take part in the inheritance;
the property is divided between the spouse and the other applicants in equal shares, excluding the spousal share.

As a rule, the refusal is carried out in the interests of children or other heirs, on a voluntary basis.

Read: Foreclosing on marital property

Grounds for allocating the share of spouses

Before you start allocating a share, you need to understand how it differs from the division of property after divorce. So, when separating, the person who did this does not have the right to claim ownership rights to the rest of the residential premises. That is, in fact, the size and location of the share is determined and documented.

The main basis for allocating a part of the common property is the desire of one of the spouses to initiate this procedure. There are a lot of reasons for this, for example:

divorce proceedings;
the presence of property disputes during the marriage;
a credit institution wishes to foreclose on the property of one of the spouses.

However, only the owners of the residential premises can initiate this procedure. But persons simply living in it with the permission of the owner do not have such a right.

The procedure for allocating shares

When inheriting, the parties can enter into an agreement on distribution independently. However, if there is a conflict, the court will decide the issue.

In other situations, for example, if the allocation of a share is necessary for the creditor, the issue will always be resolved only through the court. An interested person submits an application for the allocation of a share in jointly acquired property. The owner is the defendant.

The defendant has the right to try to challenge the claim. For example, change the share or prove that the property was acquired with personal funds (from the sale of an inheritance or with money earned before marriage, and so on).

Any facts and documents, as well as witness statements, can be used as evidence. For example, you can change the share to indicate that inseparable improvements were made from personal funds. By providing information that the funds were withdrawn from an account opened before the marriage was registered.

How to allocate a marital share in an apartment acquired during marriage

If you need to separate part of an apartment from joint ownership, then there are several ways to do this. Let's look at each of them in more detail.

According to the marriage contract

This document is regulated by the norms of the RF IC and can be concluded both before the immediate registration of marriage, and after, but before the divorce. However, in the first case, it determines the procedure for dividing property received only after marriage.

If the marriage contract defines the shares of each spouse, then after divorce it is necessary to provide to the registration authorities (Rosreestr or MFC):

statement;
copies of identity documents;
documents for the apartment;
a copy of the marriage contract;
receipt of payment of state duty;
certificate of marriage and divorce (if available).

After submitting all the necessary documents, after 14 days you must come for a certificate, which will already indicate the share that belongs to each of the spouses.

Example. The Titov couple, a year after their wedding, decided to buy an apartment and entered into a marriage contract, in which they indicated that in the event of a divorce, 2/3 of all acquired property would go to the wife, and 1/3 to the husband. This decision was made because the wife’s father gave the newlyweds a significant amount of money to buy a home. After a few years, the husband began to earn significantly more. Titov acquired ownership of two more apartments, they were registered in his name. Titova did not work, she did housework. After 10 years, the couple decided to divorce. Titov believed that the two apartments that he bought should remain his property, since his wife did not participate in their acquisition. However, the lawyer explained to the man that, under the terms of the marriage contract, he is obliged to allocate 2/3 of each of them to his ex-wife.

By agreement

The agreement is a document on the basis of which it is also possible to allocate a share from jointly owned housing. In order to do this, you need to follow the following algorithm of actions:

agree with your spouse on the allocation of a share;
prepare the necessary documents;
draw up an agreement indicating the exact shares that become the property of each spouse;
have the document certified by a notary;
contact the MFC or the regional office of Rosreestr with an application, the form of which will be provided to you there;
after 14 days, receive a certificate of ownership of the portion due to each spouse.

To apply for registration of rights you will need to collect the following documents:

copies of identity cards of each spouse;
documentation for the apartment;
apartment card;
a receipt for payment of the mandatory tax fee (in 2021 you will have to pay 2,000 rubles for this service);
a copy of the notarized agreement;
statement.

The agreement can be concluded between spouses during either divorce proceedings or cohabitation.

Example. The Martynovs lived in a private house, which was their common property, as it was acquired during their life together. After the divorce, the Martynovs did not share property and continued to live in the house together. The ex-husband took out a loan, but could not pay it off. By court decision, debt collection was applied to Martynov’s property. However, the ex-wife did not want to part with her house, so they entered into an agreement to allocate a share in the living space to each of the spouses. After Martynova’s part was re-registered as her property, she bought the second part belonging to her ex-husband, and the money was used to repay the loan.

Through the court

This procedure is necessary only if the spouses cannot come to an agreement on the shares and the procedure for distributing the shares.

Procedure and procedure

To allocate part of the housing, you must follow the following algorithm:

try to resolve the issue out of court;
collect the necessary documents;
draw up a statement of claim;
send the claim and all certificates to the court of general jurisdiction serving the area where the apartment is located;
wait for a summons from the court;
participate in all court hearings;
obtain a decision from a judicial authority (if it is not in your favor, then you must appeal to a higher authority);
apply with a resolution to the MFC or the regional office of Rosreestr with the necessary package of documents;
receive an extract from the register of ownership within 14 days.

Necessary documents for the court

Along with the statement of claim, the following package of certificates must be sent to the judicial authority:

document confirming the identity of the plaintiff;
technical documentation for the apartment;
certificate of ownership;
apartment card (extract from the house register);
receipt of payment of state duty;
marriage registration certificate;
certificate of divorce (if available);
documents confirming your claims for the allocation of a share in common housing.

Other documents may also be required that will need to be provided at the request of the court.

Statement of claim

An application for the allocation of a marital share in an apartment is drawn up in accordance with the general requirements for claims of this category, which you will learn about from this article. In any case, you will need to provide the following information:

personal information about the plaintiff, defendant;
correct name of the judicial authority;
a description of the situation due to which the need for judicial recourse arose;
information about whether a pre-trial dispute resolution procedure was initiated and what it led to;
requirements and their motivation with links to documents and regulations;
a list of documents attached to the claim;
signature of the plaintiff and date of preparation.

Documents to Rosreestr

After receiving a court decision on the division of the apartment, you must contact the MFC or the Rosreestr branch with a standard package of documents, but they must also be accompanied by a decision of the judicial authority.

Price

Since claims for the allocation of part of the housing belong to the category of property, but are not subject to assessment, when going to court you will have to pay a state fee of 300 rubles.

To make changes in the unified state register, you will have to pay 2,000 rubles for each part of the apartment.

Allocation of shares at the request of the creditor

Creditors have the right to apply to the court for the allocation of the marital share in two cases:

When collecting a debt in enforcement proceedings, when other property is not enough to fulfill the obligation.
In case of bankruptcy, but with some peculiarities.

In the first case, a claim can be filed either by the debtor himself or by the FSSP employee who is conducting enforcement proceedings. Allocation is allowed only when there is evidence that other property is insufficient to cover debts. A bailiff's conclusion and his indication of the impossibility of execution in any other way are necessary.

The procedure is carried out in court. The interested party files a claim, which must indicate:

the name of the court that will hear the case, as well as the details of the applicant, defendant and third parties, if any;
the cost of the claim and the amount of the state duty. The price is calculated based on the cost of the allocated part of the disputed objects. You can use both market value and, for example, cadastral value.
title of the statement. Indicated after the details of the parties, in the center;
general information: about the occurrence of a debt, the initiation of enforcement proceedings, the absence of other property to repay the debt;
links to legal acts and evidence of your position. You can also refer to judicial practice, although it will not be binding (but courts are often guided by it when making decisions);
additional information relevant to the case;
list of applications.

Legal assistance in preparing a statement of claim >>

Within the framework of bankruptcy, the issue of allocating a share will not be considered in the arbitration court. But creditors can present such a claim to a court of general jurisdiction and then refer to the decision.

Read: Foreclosing on the debtor’s property held by third parties

Claim by a creditor for division of marital property

As follows from Part 1 of Article 45 of the IC of the Russian Federation, debt collection under a credit or other obligation is carried out by foreclosure on the property of the debtor himself. There are exceptions to this rule, namely, if there are reasons to believe that this property will not be enough to satisfy the requirements (repayment of debt), the creditor has the right to send an application to the court, in the pleading part of which indicate the need to allocate the debtor’s share in the common property, as well as to collect debt from this property.

The above application is considered according to the rules of the Civil Procedure Code. Magistrate judges consider claims with the amount of claims less than five hundred minimum wages. Claims exceeding this limit are filed in district court.

Please note that this category of disputes is subject to a general statute of limitations of three years, which is calculated from the moment the party learned, or should have learned, that his rights were violated. In this case, from the moment the applicant learned about the existence of such property.

Important : before a decision is made on a dispute about the division of property of spouses, the court, at the request of a party to the dispute, may seize the disputed property (a ban on registration actions).