Contract form
According to the general rule established by paragraph 1 of Art. 574 of the Civil Code of the Russian Federation, any real gift agreement can be made orally
, without any formalization, which, however, is quite acceptable by decision of the parties to the transaction.
At the same time, the legislator has also identified some exceptions to this rule, requiring compliance with mandatory written form. Thus, a written denunciation is required
if the parties conclude:
However, joint property may not arise if the spouses signed a prenuptial agreement
, which establishes any other regime for the property of spouses (clause 1 of article 33 of the Family Code). In particular, the agreement may determine the rules according to which the property acquired by the spouses will initially be allocated to the property of each of the spouses or will belong exclusively to one of them, etc.
The regime of joint ownership of spouses' property involves the need to follow certain procedures when disposing of it. Thus, the alienation of property can be carried out by one of the spouses with the consent of the other, which is initially assumed
(clause 2 of article 35 of the Civil Code).
However, this rule does not apply to the disposal of real estate - this requires the notarized consent of the second spouse
, otherwise such a transaction may be declared invalid.
At the same time, the legislator has introduced some exceptions to the above rules, which determine the types of property to which the joint ownership regime does not apply. Thus, property cannot be recognized as joint ownership
, acquired before marriage, received during marriage as a gift or by inheritance, as well as things for individual use and the exclusive right to a product of intellectual activity (Article 36 of the Family Code).
Drawing up an agreement for the donation of an apartment according to the model relevant for 2020
Chapter 32 of the Civil Code of the Russian Federation stipulates the conditions for drawing up and registering a gift agreement, as well as liability for failure to fulfill prescribed obligations.
An individual who has reached the age of majority and has the right to property can act as a donor of property. You can donate a share of an apartment or the entire living space to both individuals and legal entities, a minor, or a relative. The deed of gift is issued only in written format.
A mandatory condition of the transaction is gratuitousness.
Please note that an agreement to donate an apartment between close relatives or strangers must be registered with Rosreestr. Only then will it be recognized as a legal legal document. In 2020, the transaction can be completed through multifunctional.
Having decided to donate housing to a relative, all that is required from the parties is to draw up a competent agreement.
How does the transfer occur to two or more recipients?
It is he who indicates that the transfer of real estate occurs on a voluntary basis. In another way, this deed is called a Deed of Gift. The gift agreement is signed by two parties and therefore if one of the parties does not come, then the signing of the agreement does not take place.
The rights of co-owners of residential premises are even more limited if it is jointly owned. In this case, the parts are not allocated in kind, they are conditional, and the size of the shares depends on the number of owners. For example, if an apartment is owned by three owners, then the conditional share of each will be one third of the apartment.
Donation is a common method of transferring ownership. If an item that is in common ownership (shared or joint) is given as a gift, it is important to strictly comply with the norms of the current legislation so that the transaction is valid.
Entry into inheritance and gift transaction
One should not confuse two inherently different processes: entry into inheritance of a spouse’s property under a will and acquisition of property rights upon concluding a gift transaction. If in the first case the right of ownership occurs only after the death of the testator, then in the second - immediately after registration of the gift agreement. A will must be notarized, but a gift agreement does not. It is possible to make changes to the contents of the will, but it is impossible to change the gift agreement to the spouse and it is extremely difficult to challenge it. If the donor has confirmed the act of donation with an official document, then the presence of heirs cannot in any way infringe upon the recipient’s right of ownership of the donated property.
Taking into account all the features of the transaction, donation between spouses is a process that requires legal literacy. Therefore, it is worth contacting a professional lawyer who can advise and give a couple of recommendations regarding the gift agreement.
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A gift agreement between spouses - why is it concluded? In this article we will discuss all aspects of the contract.
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Taxation on gifts to husband or wife
As is known, the recipient receiving a gift of real estate, vehicles, stocks, shares and interests is equivalent to receiving income equal to the market value of these gifts. According to Art. 208, 224 of the Tax Code, upon receipt of the specified property, the donee becomes obligated to pay income tax , the amount of which is 13% of the specified market value.
According to clause 18.1 of Art. 217 of the Tax Code, income received by way of gift, where the donor is a close relative or family member of the donee, are exempt from income tax .
The provisions of Art. 2 of the IC, the legislator determined the circle of persons who should be considered family members. Since husband and wife are included in this list , taking into account the above, when making a gift between them, the spouse acting as the donee will be exempt from 13% personal income tax.
To do this, it is advisable to indicate in the agreement that the parties to the donation are family members, and, if necessary, to provide documents confirming this fact to the tax authorities. Please note that former spouses are not family members, which is why the exemption does not apply to them.
Please note that marital relations can arise exclusively in marriage, which, according to Art. 2 of the IC, only the union of a man and a woman is recognized that is officially registered with the registry office. Thus, cohabitation that is not registered as a legal marriage cannot be a basis for exemption from personal income tax , even if the cohabitants have children together.
It should also be noted that family relations do not relieve the donee spouse from the obligation to pay property tax (Article 399 of the Tax Code). So, according to Art. 401 of the Tax Code, when receiving real estate from a husband or wife as a gift, the recipient becomes obligated to pay an annual property tax, the amount of which ranges from 0.1% to 2%, depending on the type and value of the real estate (Article 406 of the Tax Code).
