Division of property after the death of a husband

Division of property after the death of a husband

The division of property after the death of one of the spouses is necessary so that half of the common property rightfully belongs to the husband or wife, not transferred to the heirs of the deceased. Such a chapter is drawn up by notary certification or in court. In this case, the person who has survived, in addition to his share in the common property, has the right to claim part of the inheritance of the deceased, which will also include his share of the jointly acquired property.

• If at the time of death of one of the spouses they were divorced, the former spouse loses the right to inherit from the deceased.
• If by this moment they have not yet divided the property and the limitation period has not expired, then it can be divided by the heirs and the former husband. The fact of a new marriage does not affect this.

It is much more difficult to divide property after the death of a cohabitant – the regime of common property does not apply to it, even if it was actually acquired through joint efforts. However, if the surviving cohabitant manages to prove in court the fact of common ownership and disposal, it can be divided as common shared property.

Family lawyer

Skryabina Darya Sergeevna

Candidate of Law

Hello! In this article I will talk about the division of property after the death of a husband, the division of jointly acquired property after the death of a husband, the specifics of the division of property after the death of a husband, the limitation period for the division of property after the death of spouses.

Division of jointly acquired property after the death of the husband

Most often, the division of jointly acquired property is carried out during divorce. However, after the death of one of the spouses, the issue of division becomes no less acute, since in connection with this, the heirs of the deceased become active, claiming the property left by him. In order for the property rightfully belonging to the surviving spouse not to be included in the inheritance of the deceased, it is necessary to carry out the procedure for dividing the common property.

According to the Civil Code, the right of a surviving spouse to inherit from her deceased husband does not deprive him of the right to a share in the common property (if such a regime was not excluded by the marriage contract), acquired with the deceased during the marriage.

In this case, the share of the deceased in the common property, which should be included in the inheritance, is determined according to the rules established by the Family Code of Ukraine (CC).

Features of the division of property after the death of a husband

Let’s consider some features of this process that may arise during distribution:

• In the absence of disputes with the heirs, the division of property with the deceased can be carried out by contacting a notary at the place of opening of the inheritance case, who can determine his share in the common property and issue the wife with the corresponding certificate of ownership. It will confirm the right of the second spouse to half of the jointly acquired property (Fundamentals of Legislation on Notaries).
• If any interested parties (heirs, creditors of the deceased) do not agree with the division made by the notary and consider the allocated volume of things inconsistent with the share of the second spouse, they have the right to appeal it in court. Moreover, the share of such a spouse can also be determined by the court, in the event of claims by third parties.
• At the request of the heirs who have accepted the inheritance and the consent of the second spouse, the notary can also determine the share of the deceased in the common property. It is determined in the certificate of ownership of the surviving man. Such a procedure is necessary in the case when the surviving man is the title owner of the thing to be divided or all of it is in his possession and use.
• It should be taken into account that the deceased man could have left behind a will in which he disposed of the jointly acquired property not in favor of the second spouse, being only its title owner. On the grounds that by such a will the deceased violated the rights of his second spouse, such a will can be appealed in court, after which the division is carried out in the general manner.

In the absence of claims from creditors, absence of other heirs or leaving all property under the will survived the wife, the division procedure after the death of the husband or wife loses all meaning, since all property will still go to the surviving wife. In this case, he has the right to file a statement with the notary about the absence of his share in the common property.

Judicial practice of division of property after the death of the husband

Example

After the death of citizen K, in addition to his wife T and mother, K’s two children from his first marriage were called to inherit. At the same time, K’s mother immediately wrote a waiver of the inheritance in favor of T. When determining the size of the inheritance, K’s children drew the notary’s attention to the fact that during the marriage, T had acquired an apartment, based on which and according to the Family Code, half of this apartment belonged to K, and therefore this part should be included in the inheritance.

In addition, there was other property, the title owner of which was T, but it was also acquired during the marriage. Based on this and guided by Part of the Fundamentals of the Legislation of Ukraine on Notaries, K’s children submitted an application to the notary in which they asked to divide the common property of spouses T and K, allocate parts of each of them, and then include K’s share in the inheritance. Based on this application, the notary prepared a certificate of T’s ownership of jointly acquired things, in which he also determined the share of the deceased K.

Division of property after divorce in case of death of the former spouse

If at the time of the death of the spouse, the marriage with the surviving spouse had already been dissolved, in the absence of the name of the survivor in the will, such spouses will not be included among the heirs. Then, if at the time of the opening of the inheritance of the deceased, the property of such spouses was not actually divided, or the parts were not allocated, then the issue of division with him becomes especially acute.

It should be taken into account that a three-year limitation period applies to the requirements for the division of common property after the dissolution of marriage (Family Code of Ukraine). Thus, if the death of the former spouse occurred after three years from the moment when the spouse’s right to use and own common things was violated, its division will be impossible, regardless of where such property is located.

Based on the above, if the common property is in the hands of the surviving ex-husband, and the statute of limitations for division was missed by the deceased, then such a surviving wife has nothing to fear — the claims of the creditors and heirs of the deceased ex-husband to his share in the common property are unfounded and will be rejected.

The limitation period for the division of property after the death of spouses

However, if the statute of limitations has not yet expired, then the surviving ex-husband needs to know that:

1. The share of such a former spouse in the common property, in the event of the death of a husband or wife after a divorce, can be established by concluding a corresponding agreement between such a man and the heirs of the deceased who have accepted the inheritance. Such a division will be required if all or part of the common things were included or, in the opinion of the heirs, should be included in the inheritance. If there is a dispute between the heirs and the former husband, it can be resolved in court.
2. If the former husband did not have time to enter into a new marriage at the time of his death, then his inheritance, in addition to the share in the common property of the former spouses, will also include everything acquired by him after the divorce, as well as before entering into marriage (Family Code of Ukraine). Even if such property is in the possession of the surviving former husband, he has no grounds to claim it during the distribution, and therefore will be obliged to transfer it to the heirs of the deceased.
3. If the deceased husband entered into a new marriage after the divorce, then his new spouse will also be added to the number of heirs claiming his share in the common property of the divorced spouses (Family Code of Ukraine). The things acquired by the deceased together with the new man should also be divided between them and some of them should be included in the inheritance. The new man, in the absence of a will, will claim an equal share of the inheritance with the other heirs.

Please note that a new marriage of a deceased ex-husband cannot in any way affect the amount of jointly acquired property to be divided and the procedure for dividing it. It can only expand the circle of potential heirs of the deceased (new wife and children) and reduce the amount of the inheritance, to which the ex-husband himself will no longer have any relation.

Division of property after the death of a common-law husband

As is known, common-law spouses (cohabitants) are citizens who are in actual marital relations, but do not formalize them in the manner established by law. Cohabitation is not recognized by the legislator as a legal fact, and therefore the presence of citizens in such relations does not constitute common ownership of property jointly acquired during such relations and does not give the surviving cohabitant any inheritance rights.

Thus, even if things are jointly acquired and registered in the name of one of the cohabitants, in the event of his death, the surviving cohabitant cannot lay claim to them, since they will be fully included in the estate and will be transferred to the heirs.

It is possible to avoid losing a share of jointly acquired property by proving that you were dependent on the deceased cohabitant. According to the Civil Code, this allows the cohabitant to be called to inherit equally with other heirs. However, in this case, the jointly acquired property will have to be divided with other heirs, but at the same time, this will give the right to receive a share of the entire inheritance acquired before cohabitation.

Law on the division of property after the death of a common-law spouse

If the property acquired jointly with the deceased cohabitant is of value to the survivors, you can allocate your share from it in the following way:

1. According to the Civil Code, property owned by two or more persons belongs to them on the basis of common shared ownership. Thus, it can be considered that property acquired by a cohabitant in a civil marriage is their common shared property.
2. According to the Civil Code, if the shares in common property are not determined by an agreement of the co-owners or cannot be determined by law, then they should be considered equal. Based on this, if the surviving cohabitant can prove joint ownership with the deceased of things acquired in a civil marriage, then if it is impossible to determine the contribution of each of them, he will be able to claim half of the common property.
3. According to the Civil Code, things in common shared ownership can be divided at the request of one of the participants, and he can demand the allocation of his share. Based on this, in order to receive their share, such cohabitants must file a claim in court for recognition of the right of common shared ownership of specific property and the applicant’s right to a share in this property, with a demand for its allocation.
4. It is necessary to take into account that cases of successful division between cohabitants are isolated, which is why the surviving cohabitant interested in this needs to form a specific evidentiary position. Within its framework, he will need to prove:

• fact of cohabitation;
• fact of running a joint household and budget;
• fact of formation of common property (calculation of common income, surety, provision of things of one to secure the pledge of another, etc.);
• fact of mutual investment of funds in common property, etc.

Please note that one of the main factors influencing a positive outcome of the case is the proof of the degree of participation of the cohabitant in the acquisition of common property (both by means and labor). In the event of a positive outcome, the surviving cohabitant receives an allocated share in the common property, and the share of the deceased common-law man is included in his inheritance.

How is property divided after a man’s death?

As established, the mechanism applied for dividing common property after the death of a spouse will depend on the legal regime of their relationship at the time of death. Thus, being married allows for the division procedure to be simplified as much as possible, while death after divorce requires the application of the statute of limitations and consideration of the interests of the deceased’s heirs. Cohabitation, however, without forming common property, even after the death of one of the cohabitants, does not allow for the full protection of the property rights of the surviving common-law spouse, forcing him to prove the fact of common property in court.

Family lawyer

Alexey Nikolaevich Skryabin

Doctor of Law

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