How to return a share in an apartment that you refused

What is the spousal share in marital property?

People living in legally registered relationships acquire various things and objects that are considered their common property. Otherwise, it is possible if a marriage contract was concluded, which determined a different order of ownership.

How to establish whether any objects and things are the joint property of spouses is written in Art. 34 RF IC. According to this document, jointly acquired property is considered:

cars, apartments, rooms, houses, land plots and other movable and immovable property that appeared in the family while people were married;
any income received in the course of employment, intellectual work or entrepreneurial activity;
money received in the form of fees, pensions and other payments that are not of a social nature to help the sick, disabled and privileged categories of citizens;
shares, shares, other securities and deposits, regardless of who they are registered with and who contributed money for them.

According to the Family and Civil Codes, all this has a legal regime for the property of the spouses and they share it all equally, that is, each of the marriage partners has the right to ½ share of the available property.

An exception to this rule is property acquired by one of them before entering into a marriage, as well as during cohabitation by gift or inheritance, including other gratuitous transactions. The personal property of each spouse also includes clothing, shoes or personal items (this does not apply to jewelry and other luxury items).

The same exception may be a share in the inheritance of a privatized apartment if the documents are issued in the name of the deceased and the privatization was free, since this is considered a gratuitous transaction. In this case, it is necessary to file a claim to determine the spousal share of the inheritance.

When one of the people in a family relationship dies, all property, which may include the spouse's share in the inheritance, in accordance with Art. 1150 of the Civil Code of the Russian Federation, can be divided as follows:

Based on the legal regime of marital property. The surviving marital partner has all rights to the obligatory marital share, which is half of all property acquired jointly during the family relationship.
In addition, he has the right to a share of the remaining funds, both tangible and intangible.
It consists of the share of the deceased marital partner in the joint property, in accordance with Art.

The procedure for allocating a mandatory share

In Art. 75 of the Fundamentals of the Legislation of the Russian Federation on notaries describes the grounds and procedure for the applicant and the notary to establish the spousal share in the inheritance in the presence of a will, if one of the marriage partners has died, and also determines the procedure for allocating the obligatory spousal share in this inheritance to which the person is entitled. surviving spouse.

Refusal of a share when privatizing an apartment

There are two main ways to refuse a share when privatizing an apartment:

Using a gift agreement;
Non-participation in privatization.

One of the most common ways to give up your share is to give it to other participants. To complete such a procedure, the consent of the person to whom the donated part of the property will be transferred is required, i.e. donee, while consent from other homeowners is not required.

The share donation agreement itself must be drawn up in writing, which must

certified by a notary

(

clause 1 art. 42

Federal Law of July 13, 2015 No. 218-FZ

“On state registration of real estate”

We suggest you familiarize yourself with what rights a wife has to her husband’s apartment after his death

After completing the donation agreement and paying the state fee, the transfer of rights should be registered in Rosreestr. If the donor was married at the time of acquisition of property rights, it is necessary to present a notarized consent of the spouse.

You can give up part of your home ownership even at the stage of preparation for privatization. To do this, the person must obtain consent to privatize the apartment without his participation. Such a document is certified by a notary and is included in the package of documents required for privatization.

It is worth noting that it is impossible to renounce your share in favor of a specific person who lives in the apartment. The share of the person who refused it will be distributed among all persons who participate in privatization. The share can be changed only on the basis of an agreement on the determination of shares.

Details of inheritance of a privatized apartment

A person should know about this when contacting a lawyer. Any excuses from fulfilling this responsibility are a violation of the legal rights of the applicant.

Russian legislation clearly outlines how the marital share is allocated. The surviving spouse must contact a notary at the place where the inheritance was opened. The following documents are attached to the written application:

official death document to establish the fact and date of death;
marriage certificate, as confirmation of marital relations with the deceased;
documents establishing rights to property to confirm that it was acquired during the period of cohabitation (if there are no such documents, then in the absence of objections from other heirs, a certificate can be issued on the basis of a written application);
evidence of the absence of a marriage contract, this must be recorded in the application;
if there are minor children, the consent of the guardianship authorities is required.

Before registering the spousal share in the inheritance, the notary examines the application and submitted documents, and then issues a certificate confirming the ownership of the spousal share in the common property that was acquired by the husband and wife during the family relationship.

Typically this share is ½ of the total available property. Other heirs are notified of the issuance of this document. If they disagree with it, they can appeal it in court.

When drawing up a certificate, the notary, having examined the funds available, allocates the share of the person who died. This is especially true if everything is registered to the surviving spouse. This share is divided among the heirs, who must go to court.

If the deceased spouse, when drawing up a will, excluded the share of his marital partner, then such a will can be challenged in court, regarding the allocation of the marital share. If the surviving marriage partner has previously documented his share in the assets of the deceased, then this share is not included in the divisible inheritance.

According to established practice, the allocation of a spousal share in the inheritance is possible:

by agreement of the parties;
By the tribunal's decision.

If a renunciation of the spousal share in the inheritance is made, everything is formalized as a transaction, Art. 153 Civil Code of the Russian Federation.

Giving up a share in an apartment: how to give up and how much it costs in 2020

After the death of the testator, an inheritance case is opened. Within 6 months, the notary searches for all the property that was left after the person, as well as all heirs. Distribution occurs by law or by will. At the same time, the heirs have no obligation to accept the inheritance.

We draw up a deed of gift

Obtain the spouse's consent to the gift if the share was acquired during marriage. Consent is certified by a notary.
Three copies of the gift agreement and deed of transfer are drawn up and signed. The gift agreement must be certified by a notary.
Next, you need to collect a small set of documents: a technical plan of the apartment, a current extract from the Unified State Register of Real Estate, a receipt for payment of the fee (2,000 rubles).
The parties are sent to Rosreestr to register the donee's property rights. You can organize it through a notary office - faster, but a little more expensive.
Upon expiration of the registration period, the donee takes ownership of the apartment, and the donor loses ownership of the share.

In what cases is it possible to refuse a spousal share of an inheritance?

The usual practice of relations between the parties in inheritance suggests that when allocating the marital share, the property of the marriage partners is divided equally. However, there are exceptions to this rule.

The first is due to the presence of minor children by the surviving spouse.

The second exception is related to Art. 1117 of the Civil Code of the Russian Federation “Unworthy heirs”. According to the requirements of this article, the surviving spouse can be recognized as an unworthy heir and excluded from inheritance in the following cases:

if he was involved in illegal actions aimed at harming the interests of the heirs or illegal actions in relation to the testator;
if the survivor maliciously evaded the responsibility to support the testator (Article 89 of the RF IC), or had no income for an unexcused reason, and also spent the common property of the spouses to the detriment of the family.

If you need qualified advice regarding your situation, call the phone number listed at the top of the page, or send a question through the form at the bottom right of the screen. Our specialized lawyer will promptly respond and solve your problem!

In the life of every married couple, a tragic moment may come when one of the marriage partners dies. In addition to the emotional distress associated with the loss of a loved one, at this time problems often arise with the property rights of the surviving spouse in relation to joint property and the determination of the spousal share in the inheritance.

What is the spousal share in marital property?

How to establish whether any objects and things are the joint property of spouses is written in Art. 34 RF IC. According to this document, jointly acquired property is considered:

cars, apartments, rooms, houses, land plots and other movable and immovable property that appeared in the family while people were married;
any income received in the course of employment, intellectual work or entrepreneurial activity;
money received in the form of fees, pensions and other payments that are not of a social nature to help the sick, disabled and privileged categories of citizens;
shares, shares, other securities and deposits, regardless of who they are registered with and who contributed money for them.

The right to a spousal share in a privatized apartment

In this case, it is necessary to file a claim to determine the spousal share of the inheritance.

Based on the legal regime of marital property. The surviving marital partner has all rights to the obligatory marital share, which is half of all property acquired jointly during the family relationship.
In addition, he has the right to a share of the remaining funds, both tangible and intangible. It consists of the share of the deceased marital partner in the joint property, in accordance with Art. 256 of the Civil Code of the Russian Federation, and all his personal funds that he had as personal property or acquired before the conclusion of the marriage union, as well as received through donation, inheritance or other gratuitous transactions.

Procedure for obtaining a share

First of all, it is necessary to register the rights to a share in the apartment. This usually happens in the following order:

Collect documents (originals only): registration certificate with explanation and apartment plan.
Submit a package of documents for the apartment along with identification documents to the registration authority.
Check the legality of registration with a Rosreestr employee.
Obtain an owner's certificate.

Sources:

Civil Code of the Russian Federation Article 256. Common property of spouses

Civil Code of the Russian Federation Article 255. Foreclosure of a share in common property

Civil Code of the Russian Federation Section V. Inheritance law

The procedure for allocating a mandatory share

Filing an application for the allocation of a marital share in an inheritance when applying to a notary is the legal right of the surviving marital partner. Registration of such a right is the responsibility of a notary. A person should know about this when contacting a lawyer. Any excuses from fulfilling this responsibility are a violation of the legal rights of the applicant.

official death document to establish the fact and date of death;
marriage certificate, as confirmation of marital relations with the deceased;
documents establishing rights to property to confirm that it was acquired during the period of cohabitation (if there are no such documents, then in the absence of objections from other heirs, a certificate can be issued on the basis of a written application);
evidence of the absence of a marriage contract, this must be recorded in the application;
if there are minor children, the consent of the guardianship authorities is required.

Typically this share is ½ of the total available property. Other heirs are notified of the issuance of this document. If they disagree with it, they can appeal it in court.

According to established practice, the allocation of a spousal share in the inheritance is possible:

by agreement of the parties;
By the tribunal's decision.

If a renunciation of the spousal share in the inheritance is made, everything is formalized as a transaction, Art. 153 Civil Code of the Russian Federation.

Ways to divide an apartment into shares

There are various options for dividing shared property. It is also possible to allocate the share of one of the owners; in this case, the owner loses the right to his share in the apartment.

Let's look at three main methods.

Conclude an agreement to divide the apartment into shares. Ownership of housing is divided into shared (the shares have already been determined, and each owner has a document confirming the right to a specific share) or joint (in this case the shares are not determined).

Such types of property as property in dacha communities or farms, as well as property of spouses acquired during marriage, are joint property. An exception arises if there is a marriage contract or an agreement on the division of property.

If maternity capital is used to purchase real estate, it is also necessary to divide the shares in the apartment between the children and the spouse. Shares are determined upon repayment of the loan. The size of shares is not limited by law.

Draw up a marriage contract. Referring to this document, it will be easier for spouses to divide different types of property: shared, joint, or individual. The marriage contract is certified by a notary and does not lose legal force until property disputes are resolved.
Decide in court. The ownership of a privatized apartment can be assigned to one person, but in some cases it is possible to sue the owner for a share in the privatized apartment. For example, if housing was purchased by spouses during marriage, but ownership was registered only for one of them. During the divorce process, the court, on the basis of Article 256 of the Civil Code of the Russian Federation, will allocate a share to the spouse who did not become a co-owner when registering the rights to this apartment.

Determining the size of the share is necessary for any division of property. For example, when collecting property from a debtor (according to Article 255 of the Civil Code of the Russian Federation), if he is a co-owner of joint property.

In what cases is it possible to refuse a spousal share of an inheritance?

The first is due to the presence of minor children by the surviving spouse.

if he was involved in illegal actions aimed at harming the interests of the heirs or illegal actions in relation to the testator;
if the survivor maliciously evaded the responsibility to support the testator (Article 89 of the RF IC), or had no income for an unexcused reason, and also spent the common property of the spouses to the detriment of the family.

Support in donating an apartment to a spouse, allocating a marital share: agreement, state registration

Is it possible to return a share of an apartment inherited after registering a relinquishment of it?

Hello, we have the following problem: my husband’s father died when he was a minor, his share was 1/2, after he came of age, out of his gullibility and at the insistence of his stepmother, he abandoned his father’s share. she promised to buy him an apartment in the future, but this did not happen. Is it possible to return the father’s share, which he refused out of trust.

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In this case, there are no grounds for recognizing the transaction as invalid unless you prove that the gift transaction was made by the husband in a state where he was not able to understand the meaning of his actions or manage them, and also if the transaction was made under the influence of a significant misconception.

Spousal share in a privatized apartment

As well as all property received under any types of transactions before marriage.

An apartment is considered jointly owned if it was acquired as a result of a purchase during the existence of a marriage. And it doesn’t matter which spouse the apartment is registered to - both spouses have the same rights to it, unless otherwise proven - for example, not stated in the marriage contract.

Difficulty in executing transactions between spouses is due to the fact that the law requires the consent of one spouse to a transaction by the other spouse. The spouse's consent is formalized by a notary.

Donation of an apartment (jointly owned property) to a spouse

There is a legal conflict: on the one hand, there is no direct restriction on transactions between spouses, on the other hand, a participant in a transaction cannot legally represent both parties to this transaction at the same time.

The spouse, being the acquiring party in a transaction (no matter a gift or sale), is at the same time forced to represent the other party, because must give consent to the transaction to this party.

In such a situation, there are two options:

preliminary allocation of the marital share in the name of the recipient spouse and subsequent donation of the remaining share for the apartment;
conclusion of a marriage contract.

Allocation of the spousal share in a jointly owned apartment

As a result of the allocation of the spousal share, ownership of the apartment under the relevant agreement will be registered in equal shares between the spouses.

Equal shares in the ownership of the apartment in this way are the personal property of each spouse, therefore, each spouse can dispose of their share without the consent of the other spouse.

Owning a jointly acquired apartment in equal shares, after the allocation of the marital share has taken place, the spouses can freely give their shares to each other.

Such a transaction of donating an apartment to a spouse can be drawn up and registered in simple written form.

Attention! Not every region will accept an agreement on the allocation of a marital share

Transferring the apartment to the spouse according to the scheme described above is often preferable to concluding a marriage contract between the spouses.

Giving a spouse an apartment that is personally owned by the spouse

It is possible to transfer an apartment to a spouse through a purchase and sale transaction only if a marriage contract has been concluded between the spouses.

Without separate ownership of property (prenuptial agreement), you should not try to transfer the apartment to your spouse through purchase and sale. When selling an apartment to his wife, the seller must give her permission to purchase the property, because is married to her. Again we find ourselves in the situation described above, only this time it is not the Buyer, but the Seller who represents both sides of the transaction.

Even if such a transaction passes state registration due to an oversight by officials, it may later be terminated as illegal.

Therefore, in the absence of a marriage contract, it is necessary to transfer an apartment to the spouse, even if it is the personal property of the spouse, through a gift agreement.

In both of the described gift schemes, the apartment received by the wife as a gift from her husband will become her personal property.

The Donee does not pay taxes, because The Donor is a family member.

Donation of an apartment to a spouse, incl. through the allocation of the marital share

How to return a share in an apartment

Advice from lawyers:

1. Is it possible to return a previously donated 1/2 share of an apartment?

1.1. Civil Code of the Russian Federation Article 578. Cancellation of a donation 1. The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the gift belongs to the heirs of the donor. 2. The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss. 3. At the request of an interested person, the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within six months preceding the declaration of such a person as insolvent (bankrupt). 4. The gift agreement may stipulate the right of the donor to cancel the gift if he survives the donee. 5. In case of cancellation of the donation, the donee is obliged to return the donated item if it was preserved in kind at the time of cancellation of the donation.

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2. I gave up my share of the apartment during marriage, how can I get it back?

2.1. If the property right has already been registered, then no way. Unless, of course, you were forced to refuse under threat of deprivation of life. Then a statement to the police department,

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2.2. Dear Maria! Is the apartment jointly acquired property in marriage? Why do you need to return it?

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3. I gave up my share in the apartment in favor of my mother 20 years ago, how can I get it back?

3.1. Hello. How?

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4. The brother refused the inheritance. When selling the apartment, I want to return his share to him, is it possible to somehow get this notarized? So that there are no complaints in the future? I understand that he already refused the inheritance, but still I want to notarize the transfer of money.

4.1. Hello, in your situation, it is possible to notarize the transfer of money.

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4.2. Yes, this can be certified by a notary or issued with a receipt that you are transferring the money specifically for the share in the inheritance, which he voluntarily renounced.

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4.3. Yes, if he agrees. BUT there is no point in this. A simple receipt confirming that he has received money from you will be more than enough.

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5. Please