Domestic legislation allows two ways of dividing inheritance. The first presupposes the existence of a will with the distribution of property according to the will of the testator. The second option is used in the absence of such a document and is called inheritance by force of law. Its main principle is the distribution of property in accordance with the order of heirs. The laws governing this procedure are relatively complex. Therefore, the question of how the inheritance is divided between the first-line heirs is rightly considered one of the most pressing. The detailed answer is contained in the article.
How to divide an inheritance between first-line heirs: basic rules
The rules of inheritance in force in Russia are regulated by the provisions of two basic documents. The first is the Family Code of the Russian Federation (put into effect after the adoption of No. 223-FZ of December 29, 1995, the current version was approved on February 6, 2020). It defines the principles of kinship, which play a key role in determining the order of inheritance under the law.
The second document - Part 3 of the Civil Code of the Russian Federation (came into force after the signing of No. 146-FZ of November 26, 2001, the current version was adopted on March 18, 2019) - directly determines the procedure for inheriting property. Chapter 5 of the legislative act is entirely devoted to its description.
Chapter 61 of the document is devoted to a description of the general principles of inheritance. The other two chapters - 62 and 63 - describe the procedure for inheritance by will and by law, respectively.
According to the provisions of the RF IC and the RF Civil Code, priority means the order of inheritance by law, determined taking into account the degree of relationship in relation to the testator. Therefore, the concept is used primarily when there is no will.
Important
. The rights of certain categories of heirs are protected by law even when the distribution of inheritance is carried out on the basis of a will. In this case we are talking about such shares of the inheritance, described in detail below, as obligatory and spousal,
The legislation divides heirs into 7 stages: starting with the 1st, which includes children, spouses and parents of the deceased, and ending with the 7th, which includes non-adopted children.
The immediate relatives of the testator quite logically receive preferential rights. The main principle by which property is distributed between the lines of heirs is very clear: for the next line to participate, the absence of all the previous ones is necessary.
As noted above, the division of property occurs according to one of two options. The features of each need to be considered in more detail.
Division by will
Every citizen has the right to bequeath his own property to whomever he sees fit. To do this, it is enough to properly draw up a will. It can be canceled or adjusted at any time at the request of the testator. There are three main requirements for the document - preparation in writing, notarization and the personal signature of the testator.
Despite the right of the testator to independently decide the fate of his property, participation in the inheritance of certain categories of relatives is additionally ensured. The protection mechanism involves the separation of the so-called obligatory and spousal shares.
Mandatory
It represents half of what the heirs were legally entitled to receive, regardless of the contents of the will. In such a situation we are talking about the following persons:
- children of the testator until they turn 18 years old;
- adult children who are unable to work due to poor health;
- disabled first-degree relatives or dependents.
In each of the listed cases, the right to inheritance must be proven documented. For example, incapacity for work is confirmed by a medical certificate, minority - by presenting a birth certificate or passport.
Marital
An analysis of the legal framework in force today allows us to draw an unambiguous conclusion: property acquired during marriage is divided equally between spouses. Therefore, in the event of the death of a husband/wife, regardless of the presence or absence of a will, half of the joint property must go to the second spouse. This rule does not depend on how the inheritance is distributed among the remaining heirs.
A change in the size of the marital share - both up and down - is possible in several cases clearly specified in legislative acts:
- signing a marriage contract defining the rights of the spouses, including inheritance;
- presence of a common minor child;
- waste of family property or lack of income generated by the deceased during the marriage.
Determination of shares. When is it needed?
Even when a will is drawn up in compliance with all the rules, the concept of obligatory shares for relatives remains unchanged.
The obligatory part of the inheritance is provided for:
- Parents and spouses who have lost their ability to work.
- Disabled children.
- A child who has not reached the age of majority.
The obligatory share is half of the property that would be due to them by law if there is no will.
The inheritance is divided evenly among all first-line heirs . The size of the shares depends on how many heirs there are. For example, everyone receives 1/4 if there are only four heirs. The inheritance can go to the mother if the deceased did not have a spouse or children.
Division without a will (by law)
Making a will significantly simplifies the decision on how to divide the inheritance between the relatives and friends of the deceased. Inheritance by law is somewhat more complicated, and therefore is often accompanied by conflicts and controversial situations that arise even between close relatives.
The basic principle of inheritance without a will is quite simple. First, the inheritance is distributed among the first-line heirs. Only in their absence does the right to inheritance pass to persons included in the 2nd and all subsequent stages, up to the last, seventh.
Heirs of the 1st stage
The circle of 1st order heirs is extremely limited. These include:
- children. It does not matter whether the case concerns a natural child or an officially adopted one. An illegitimate child can also become a first-degree heir, for which he will need to document the relationship using genetic testing. The presence of an unborn child of the testator leads to the impossibility of distributing the inheritance before his birth;
- husband wife. The only mandatory condition is the presence of a marriage that is officially registered. Wedding or civil marriage are not grounds for including a spouse in the number of heirs of the 1st priority. A divorce carried out before the opening of the inheritance means the inability to take part in the division of the property of the deceased husband or wife;
- parents. The category of heirs under consideration includes both the natural father and mother, as well as the official adoptive parents. Parents whose parental rights have been taken away by a court decision do not have rights to inherit by law;
- dependents. The condition for obtaining inheritance rights is confirmed dependent status for at least a year. In this case, the place of actual residence of the person does not matter.
Important
. If there is a death of one of the heirs of the 1st stage - together with or before the testator, his place in the procedure for distribution of property by right of representation is taken by his descendants. A typical example of such a situation is a grandson receiving his grandfather's inheritance instead of his deceased father.
Rules for distribution of inheritance
The answer to the question of how to divide an inheritance according to the law requires taking into account many related factors. The procedure provided for by the legal framework is somewhat more complicated than in inheritance under a testamentary document, so conflicts and disputes in such a situation can hardly be called a rare occurrence.
For example, the distribution of inheritance among first-priority heirs takes into account the marital share, the definition of which is given above. In addition, it is important to remember that heirs have the legal opportunity to independently distribute shares of the inheritance and sign a settlement agreement on this. The main requirements for a document in such a situation are the fulfillment of two mandatory conditions: the consent of all heirs of the 1st stage and notarization.
The third complicating factor is the possibility of legal challenge by one of the heirs not only of his own share in inheritance by law, but even of the provisions of an officially drawn up will. The basis for filing a claim may be non-compliance with the rights of owners of a mandatory or marital share, doubts about the authenticity of the document, etc.
Considering the above, it becomes clear why the issue of distribution of property often becomes extremely painful even for first-line heirs, most of whom are close relatives. The legal procedure for dividing inheritance requires compliance with the following principles:
- First of all, the marital share is removed from the testator's property. Property received by the wife or husband is excluded from further inheritance procedures;
- the remaining inheritance is distributed equally among the heirs of the 1st stage, including the wife or husband who received the marital share;
- if there is one heir of the 1st stage, he receives all the property. The only exception to this rule is that a dependent cannot inherit more than a quarter of the testator’s property;
- heirs by right of representation receive the share of the deceased heir of the first priority and divide it equally;
- when dividing indivisible property (furniture, car), it is either sold with the subsequent distribution of funds according to the above rules, or transferred to one of the heirs of the 1st priority with the payment of monetary compensation to the others.
Indivisible things in inheritance
Russian legislation also distinguishes between so-called indivisible things. These may include inheritance of an apartment, car, garage, musical instrument and other property, the division of which is impossible without preserving all the functions assigned to it.
For such an inheritance, the property is not divided, but is completely transferred to the heir who has the priority right to receive it. This may be a person who has joint ownership rights with the testator. In this case, the indivisible inheritance (the division of property cannot be carried out physically) passes to the heir with priority rights against his total inheritance share.
Time frame for the procedure
Registration of inheritance occurs six months after the death of the owner of the property. There are 3 situations in which the specified time period can be changed:
- the period is counted not from the date of death, but from the moment the testator receives the status of deceased or missing by a court decision;
- the heir has a reasoned basis to explain the missed deadline for entering into inheritance established by law. In such a situation, he can restore his own rights in one of two ways - by applying to the judicial authorities or through an out-of-court procedure. The second option requires the consent of all other heirs;
- the heir is an unborn child who can inherit after birth.
In the absence of heirs of the 1st stage, the rights listed above pass to the representatives of the 2nd stage. In this case, the period allotted for entering into inheritance, which is equal to 6 months, begins anew.
Does a spouse always have the right to inherit?
A person legally receives his inheritance only if the spouse was in a properly registered marriage with the deceased testator. Any other forms of cohabitation are not a legal basis for receiving an inheritance. If these are ex-husband and wife, then he or she has no right to claim the inheritance of the deceased spouse, even if the divorce took place on the eve of death.
As in case of divorce, inherited property is divided according to a similar scheme. Namely: for a husband and wife, their property is considered common, jointly acquired. From here it turns out that after death, two halves of the joint property of the spouses are allocated, one of which goes to the legal wife/husband, and the other is divided between the remaining primary relatives and, again, the widow/widower. From this legislative fact, it seems that the bulk of the inherited property goes to the living spouse. This is incorrect: the living spouse simply receives his half of the property that belongs to him as jointly acquired during the years of marriage, plus an equal share with his first-priority relatives from the second half of the property (inheritance). At the same time, his personal property is also inherited from the deceased, not only jointly acquired with his spouse.
I would like to give advice to the cohabitant of a deceased citizen, with whom the marriage was never formalized. Not everything is lost. For example, if such a cohabitant is indicated in the will, he will certainly receive the specified share in the inheritance. Otherwise, he can claim part of the obligatory share of the inheritance guaranteed by the state, acting as a dependent, namely the disabled cohabitant of the deceased person, if he is a pensioner or disabled.
Features and rules of refusal of inheritance
The right of inheritance is voluntary. To refuse to participate in the division of property, it is enough to use one of two methods. The first provides for inaction in matters of registration of inheritance for six months. As a result, the testator's property will be divided without the participation of the heir.
The second option is to issue a written refusal. To do this, the easiest way is to contact a notary handling the inheritance case. The heir must submit a corresponding application and have the document certified by a specialist. In this case, it is possible to transfer your share to one of the other heirs.
If there is no will. How is property distributed?
The Civil Code describes as precisely as possible the sequence in which the right of inheritance occurs.
, seven categories of are taken into account when inheriting . The provision on the principle of representation comes into play if there are no close relatives. If there is no direct successor, the presence of possible direct descendants is taken into account. If there are no children, grandchildren can replace them first.
In the absence of relatives of the first priority, the right is assigned to representatives of the second, and so on.
Grandchildren, grandparents and brothers are the second category of inheritance. Uncles and aunts belong to the third group, followed by cousins and brothers . Property is divided in equal shares if there are several heirs with the same order . Only in advance is the share acquired in a joint marriage removed from the property.
