Marriage agreement in case of death of one of the spouses

Nowadays, when getting married or already married, spouses often sign a prenuptial agreement in order to avoid disagreements and ambiguities in property relations. But it may happen that one of them leaves this world earlier, so many are interested in the question: can a marriage contract be concluded in the event of the death of a husband or wife?

Legal nature of the marriage contract

• To answer the question whether it is possible to provide in an agreement for the death of a spouse and the fate of the property in this case, you need to understand what agreements of this kind are.
• By legal nature, a marriage contract is a bilateral agreement concluded between a husband and wife in order to clarify what property rights and obligations each of them will have during marriage and after the dissolution of the marriage.
• As a rule, the following conditions are included in it:

• to whom and what property will belong;
• how the spouses will bear the expenses;
• mutual maintenance responsibilities;
• how material assets will be divided during a divorce;
• about how spouses will participate in each other’s income;
• on determining shares if the spouses establish a joint ownership regime.

It should be noted that the contract can include conditions relating not only to the property that the spouses have at the time of signing it, but also to determine the fate of things that will be acquired in the future.

The agreement may also include provisions on the duration of rights and obligations, or the dependence of their occurrence on certain conditions.

In other words, the parties have the right to introduce any provisions into the contract; the only prohibition concerns the impossibility of including in it conditions relating to non-property rights (personal relationships, raising children).

The procedure for concluding a marriage contract

In order for a marriage contract to be valid and give rise to legal consequences, the following rules must be observed when concluding it:

• both spouses must agree to enter into an agreement and have full legal capacity;
• it must be drawn up in writing and certified by a notary office;
• It is unacceptable to include conditions that contradict the norms of law or infringe the rights of one of the parties (limitation of the right of a spouse who has lost the ability to work to support, a ban on appealing to the judiciary).

Failure to comply with at least one of these points will entail the recognition of the contract as invalid or its individual parts will be considered invalid.

To conclude a marriage contract, spouses (or persons intending to get married) should draw up a draft marriage agreement (on their own or with the help of a lawyer) and come to the notary’s office with the following documents:

• passports;
• marriage certificate (if available);
• documents confirming property rights.

The marriage agreement is drawn up in 3 copies, one of which is kept in the notary's office, and two of which are given to each of the spouses.

If the marriage contract was concluded before the registration of the marriage union, it acquires legal force after the official marriage. An agreement signed during marriage comes into force after it is notarized.

The grounds for change or termination may be:

• conclusion of an additional agreement on amendments to the document;
• violation of the agreed terms by one of the parties (in this case you will have to go to the courts);
• termination of marriage.

It is impossible to terminate or change the contract at the request of only one of the parties.

Is it possible to conclude a marriage contract in case of death?

1. Sometimes, especially when it comes to elderly couples, citizens, coming to a notary in order to settle property issues, express a desire to enter into a marriage contract, which will include conditions for the disposal of common property after the death of one of the spouses.

2. However, such provisions cannot be included in this document, since the law clearly establishes that only a will or an agreement of heirs on the division of property can regulate issues relating to the fate of property after the death of its owner.

3. Therefore, if a husband and wife, when drawing up a document, include a condition in it that the marriage contract in the event of the death of one of the spouses in some way determines the procedure for disposing of common property, the consequence will be that it will be declared invalid (in whole or in part).

If one of the spouses wants to dispose of their property in the event of their death, the only legal option is to visit a notary's office and draw up a will. However, he is not obliged to inform his other half about the writing of the will.

Is a prenuptial agreement valid after the death of one of the spouses?

According to the provisions of family law, the marriage contract is canceled in the event of the termination of the marriage, and among other grounds for such termination, the death of the husband or wife is indicated. Based on this, it must be assumed that the marriage contract terminates upon the death of one of the spouses.

But it should be taken into account that in Art. 43 of the RF IC states that the obligations provided for in the agreement in case the marriage is terminated remain in force.

For example, the property regime established in the contract (separate, shared or joint) remains the same, that is, the surviving spouse retains his right to his part of the property and in this part the contract will be valid, including after death.

The provisions of the agreement concerning relations between the couple during life (on joint expenses, mutual maintenance) cease to apply when one of the spouses dies.

The influence of a marriage contract on inheritance

• If the agreement has not been concluded and there is no will, then the marital share of the deceased is separated from the jointly acquired property, which is inherited by all heirs in equal shares, including the surviving spouse, since he is the heir of the first priority.
• The conclusion of a marriage contract significantly changes the order of inheritance.
• Despite the fact that such a document cannot directly establish the procedure for disposing of the property of a deceased citizen, a marriage contract, nevertheless, indirectly affects inheritance after the death of one of the spouses.

This is directly confirmed by the Supreme Court of the Russian Federation, which in the Resolution of the Plenum of May 29, 2012 No. 9 directly indicates that the inheritance of the deceased spouse includes his personal property and share in jointly acquired property, unless the marriage contract stipulates otherwise.

Inheritance by law. Here a lot depends on the property regime established in the agreement:

1. When each spouse owns only the things they bought (separate property), only they will be inherited. For example, the husband bought a dacha, and the wife bought a tea set. In the event of her death, only the service will be inherited, the husband can also claim a share in it, but the dacha will remain his property.
2. If the regime of shared ownership is established, the survivor owns his share, and the deceased spouse's share is proportional to the number of heirs. For example, if, by agreement, the husband owns 60% and the wife 40%, and the wife passes away, then the husband will be allocated a share of 60%, and, along with other heirs, he will be able to receive part of the wife’s property.
3. In the case when the joint property regime is in effect, it will be divided between the heirs (including the living spouse) after the allocation of the marital share, that is, practically the same as in inheritance by law. But a marriage agreement may provide for some nuances, for example, that things donated or received for other gratuitous reasons are also considered joint property.

In other cases, the inheritance will be considered illegal and invalid.

Inheritance by will

In this case, everything will depend on the will of the deceased. At the same time, he can only dispose of the property that belongs to him according to the marriage contract.

In this situation, the persons to whom the property passes are indicated in the will; in the same document, as a rule, it is stated what property and in what shares will pass to them. The deceased spouse has the right not to include the survivor in the will. In this case, the latter will not be able to claim part of the property remaining from him.

However, if the husband/wife is disabled and was dependent on the deceased, they have the right to receive a share in the inheritance in accordance with the norms of the Civil Code “On Mandatory Share”.

The issue is resolved in a similar way in the reverse situation, when the deceased spouse bequeathed everything that belonged to him to his other half. His disabled children, parents, and dependents still receive a portion of the inheritance, regardless of what is specified in the will.

Analyzing the question of how a marriage contract and inheritance are related, we can conclude that if the agreement is drawn up correctly, it can significantly facilitate the surviving spouse’s registration of his inheritance rights, and save him from disputes (including litigation) with other claimants to the property of the deceased .

To do this, first of all, you should pay attention to the provisions related to the regime of property of the spouses, both already available when signing the contract and acquired in the future.

Is it possible to challenge a marriage contract after the death of a spouse?

It is not uncommon for a surviving spouse to believe that a prenuptial agreement violates his or her rights. In this case, it is possible to challenge the agreement, even if one of those who concluded it has already left this world.

The dispute takes place in court. To do this, it is necessary to send an application to the court, which should set out the circumstances on the basis of which the widower/widow demands that the marriage contract be declared invalid.

A contract can be declared invalid, void or voidable only if there are compelling reasons.

An agreement is considered void if:

• it was signed by incapacitated persons;
• it was not certified by a notary;
• the document contains conditions that are contrary to the law;
• it contains signs of a feigned or imaginary transaction.

You can submit an application within three years from the date of its signing.

You can challenge the agreement if:

• the agreement was signed by a person who was not aware of his actions (intoxicated, in a traumatic situation);
• the contract was signed by a citizen with limited legal capacity, without the consent of the trustee;
• the agreement was concluded as a result of a difficult life situation;
• the citizen signed the agreement under the threat of violence;
• the agreement puts the living spouse at an extreme disadvantage;
• The husband/wife, when signing the agreement, did not understand its essence and the consequences of signing.

The period for challenging is 12 months from the moment the applicant learned of the facts on the basis of which he is challenging the contract.

The following documents are attached to the application:

• a copy of the applicant's passport;
• Marriage certificate;
• marriage contract;
• certificate confirming the death of the spouse;
• documents confirming the arguments of the surviving spouse (papers confirming ownership, checks, receipts);
• other evidence (for example, photographs and videos).

All circumstances referred to by the widower/widow must be properly confirmed in court. This can be quite difficult to do even when both spouses are alive, and if one of them dies, the situation becomes even more difficult.

And if the signing of an agreement by an incapacitated person or the lack of certification from a notary can be documented, then circumstances such as the state of intoxication at the time of signing will be difficult to prove.

Separately, it should be said about the disadvantageous position of the living spouse. This concept is absent in the legislation and is subjective, since anyone who applies to the court to protect their interests considers their position to be unfavorable. Therefore, when making a decision, the judge pays attention to:

• the financial situation of the living spouse;
• the fact of having a regular income, provision of living space;
• health and age of the widower/widow;
• other circumstances relevant to the case (serious illness of the applicant, disability).

If the court considers the arguments of the surviving husband/wife to be compelling, the marriage contract will be declared invalid and not entailing any consequences, and the property will be divided on the basis of the principle of equal shares of the husband and wife, that is, 50/50. If the division of the inheritance has already been made on the basis of a marriage agreement, all these actions will be canceled, and the inheritance will be divided anew according to the court decision.

So, a prenuptial agreement, if drafted correctly and with due care, is a good option for spouses who want to streamline their property relations and avoid problems associated with the division of material assets in the event of a possible separation.

However, such a document cannot regulate issues of property disposal; the inclusion of such conditions in it leads to its recognition as invalid.

Marriage agreement in case of death of one of the spouses

Married life may end due to the fact that the marriage is dissolved, or perhaps for natural reasons - one of the spouses remains a widow or widower. The death of one of the spouses entails a natural course of events, which is first reflected in the funeral of the deceased, and then in the division of the deceased's inheritance.

According to the law, after a person’s death, either those indicated in the will or those who are first-line heirs claim the inheritance.

If the spouses, while still alive, are thinking about how the other half will be provided for after the death of one party, then they can draw up a will, which will indicate their will. But you should know that if there are incapacitated dependents, they will still have to leave their due share, even if there is no such desire. In addition, it is very difficult to negotiate an inheritance that does not entirely belong to a person. After all, everything acquired by husband and wife during marriage is considered common property.

To protect themselves from all sides, some spouses draw up marriage contracts indicating the ownership of property and other valuables. Can a marriage contract be concluded in the event of death?

What is a prenuptial agreement?

A marriage contract is a document that allows you to stipulate all the financial aspects of a joint family life, as well as the material support of each party after a divorce.

According to the legislation of the Russian Federation, when concluding a contract, a married couple has the right to discuss in it:

1. Who will provide for family needs, and in what shares will each spouse contribute to the family budget.
2. How will financial security change after the birth of children?
3. Who will own property acquired during marriage? If we are talking about joint ownership, then in what shares will it be?
4. Will property be divided among minor children?

This document can provide for nuances, but all of them must relate specifically to material assets and their possession in the event of a divorce. For example, you can stipulate that gifts that a husband gives to his wife will belong to her even after a divorce.

Additional financial support for the spouse and children in the event of termination of the relationship may also be agreed upon.

But, it is worth remembering that the contract cannot contain special instructions regarding child custody, as well as the refusal of one party to pay alimony benefits if necessary.

In what cases is it possible to conclude an agreement?

The marriage contract is legalized in the territory of the Russian Federation by legislative acts. Therefore, everyone can resort to drawing up this document. When concluding an agreement, it is necessary to understand regulatory issues and understand in which cases signing is impossible.

Guided by the general rules, we can safely say that a marriage agreement can be concluded by two people only within a certain time period.

The beginning of this period begins from the moment the relationship is registered in the registry office, and ends on the day of divorce there.

That is, it will not be possible to conclude a contract either before or after making the appropriate entry in the civil registration books. But this can be done at any time between the wedding and divorce.

To conclude the paper, you will need to comply with a number of other obligations:

1. Both parties must be of legal age.
2. A voluntary and mutual desire to draw up and sign an agreement is required. Deception, violence, blackmail and other methods of intimidation to obtain a signature are not permitted.
3. The capacity of the husband and wife to certify the document should not be in doubt.

It is also important to have the paper certified by a notary. Only a notarial signature gives it the status of an official legal form.

Form and procedure for concluding an agreement

The contract between spouses is concluded according to the norms established by law. These norms are prescribed in the Family Code. It is guided by this document that it is necessary to draw up an agreement and write down the necessary points in it.

The form is also important, but it is not very different from a standard contract, which is what this paper actually is.

When writing a draft of a future agreement, the following points must be indicated in a certain order:

1. Place and date of signing.
2. Document's name.
3. Full passport details of the parties who are parties to the contract. Here the full name, date of birth, time of issue of the passport and place of receipt, and other information are written down.
4. The section “subject of the contract” describes all the conditions of interest to the parties; the more fully they are specified, the less opportunities for controversial issues to arise regarding each of them.
5. An entire section is devoted to the rights of husband and wife and their responsibilities.
6. Responsibility for non-compliance with the terms of the contract is separately prescribed.
7. The last block specifies the possibility of making changes to the document or canceling it completely.
8. Ends with the signatures of the parties.

The order of the conclusion may be different; the paper can be drawn up first and then certified. Or transfer this responsibility to a notary who will do this for a fee. But in any case, it is necessary to enter the document into the notary registers; without such a mark, the agreement is automatically considered void.

Is it possible to draw up a prenuptial agreement in the event of death?

Let's move on to the main question that interests us - is it possible to indicate special orders that come into force in the event of the death of one of the spouses?

All issues related to the inheritance of property in the event of a person’s death relate to inheritance. Inheritance is a different procedure and has nothing to do with prenuptial arrangements.

Therefore, it is legally prohibited to include clauses in the agreement that would stipulate shares inherited after death.

If, due to ignorance or inattention, such conditions are nevertheless agreed upon, then the heirs have the right to protest this contract in whole or in part.

Of course, the existence of a concluded agreement between spouses in any case affects the inherited part of the property and this cannot be canceled. But since no one knows which of the couple will die first, the prescribed conditions are not considered pre-verified based on the calculation of inherited shares.

Marriage contract

Is the contract valid after the death of a spouse?

This fact is due to the fact that a marriage relationship implies the presence of two parties to it; if one of the spouses dies, the marriage is automatically dissolved. To record a divorce, the second spouse must provide a death certificate to the registry office and write an application for change of status.

At the same time, after the death of one party, the second takes possession of the property that was indicated in the marriage agreement as his property. But the property of the deceased will be divided among the heirs of the first priority, which includes the spouse himself.

If the deceased made a will in advance, then the distribution of property will be made according to it, with mandatory consideration of the needs and interests of incapacitated dependents.

If, according to the contract, all valuables went to the deceased, but he did not leave a will, then after his death everything is divided in equal shares between the heirs of the first priority. These include spouse, children and parents.

Is a prenuptial agreement valid in the event of the death of one of the spouses?

A marriage contract is a normative agreement concluded between citizens who plan to start a family (or between already legal spouses), regulating the procedure for designating and delimiting property rights and responsibilities during family relationships or after their dissolution.

Divorce automatically implies the simultaneous termination of the contract and all its provisions. Also, one of the circumstances leading to the annulment of a marriage relationship is the death of one of the spouses. In this case, the property provisions of the marriage contract will influence the registration of inheritance rights of the second spouse and other first-rank heirs.

The legislative framework

Inheritance in the presence of a formalized marriage contract is considered a legal relationship in a related area, and therefore will be regulated by the norms of various legal documents.

Legislative acts regulating the use of a marriage contract:

For resolving disputes aimed at challenging the terms of a contract and designating rights to inheritance, judicial practice is of particular importance. The legal concept does not allow the use of specific court decisions as a precedent. The generalized judicial practice regulated in the Resolutions of the Plenum of the Supreme Court of the Russian Federation has legal significance.

Does it work?

The specifics of a marriage contract in the event of the death of one of the spouses are regulated by Section 5 of the Civil Code of the Russian Federation, which is devoted to inheritance legal relations. Determines the procedure for inheriting the assets of a deceased citizen in the presence of a marriage agreement.

According to the legislative framework of the Russian Federation, the list of assets subject to distribution among the heirs includes all assets, real estate and funds that remained after the deceased and belonged to him by right of ownership or other legal basis.

In the event of the death of one of the spouses, a marriage contract may establish the following legal regimes for family property:

• joint, when the shares of the spouses will not be divided by common law;
• shared, when the share of each spouse is indicated in a specific nominal (percentage) value.

Joint ownership of assets for inheritance purposes assumes that the estate will include 50% of all types of property assets of the spouses that were acquired during the official marriage. The surviving spouse will take part, on a general basis, in the inheritance of half of the assets that remain after the death of the citizen.

The legislator of the Russian Federation does not provide for any exceptions, according to which the rights of the heirs will not extend to the share of the surviving spouse. The probate portion will indicate only the amount of assets that belonged to the citizen at the time of death.

Sample marriage contract at the link.

Is it possible to challenge?

Challenging a marriage contract in the event of the death of one of the spouses is possible only in court and if there are grounds specified in the laws. The initiator may be the injured party (spouse) or third parties (direct heirs).

Reasons for appeal:

• when signing the marriage contract, one of the spouses was an incompetent citizen, unable to properly manage his actions and fully understand their significance;
• one of the parties intentionally misled the other regarding the consequences of concluding the contract;
• the document was issued due to a combination of difficult life circumstances or through the use of criminal methods of influence;
• if the family contract was concluded with a person with limited legal capacity;
• the husband or wife was placed in an extremely disadvantageous position by the marriage agreement.

However, the main purpose of the contest is considered to be to increase the total inheritance mass and the share of inheritance of blood relatives.

In this case, the procedure for invalidating the relevant document will be applied.

To do this, you will need to prove that the provisions of the marriage contract included clauses related to the division of inherited property, as well as confirm an attempt to resolve personal relationships.

How to invalidate?

A marriage contract can be declared invalid in the event of the death of a spouse by filing a claim with the court. If the injured party decides to resolve the issue through litigation, it is necessary to pay attention to compliance with the following norms of the legislation of the Russian Federation:

• written form of registration and mandatory notarization;
• execution of general and auxiliary conditions for the implementation of transactions;
• lack of verification of the facts of threats, violent acts, deliberate misrepresentation when concluding a marriage contract.

If the court decides to invalidate the agreement, the joint property will again be subject to the joint ownership procedure after the death of one of the spouses. But even in the appropriate case, the surviving citizen will receive half of the family’s material assets, and will also legally receive the right to accept a share of the inheritance.

The notary (court) will need to provide the following documentation:

• original and photocopy of the marriage contract;
• marriage certificate;
• original ID;
• original and photocopy of the death certificate of the spouse;
• any documentation that will allow you to establish in what mode the jointly acquired property was located (contracts, certificates, certificates, checks, etc.).

Statistics show that it is extremely rare for a marriage contract to be declared invalid, because after the death of a spouse, his rights will be defended by close relatives, who are rarely able to provide the court with reliable and irrefutable evidence of violations.

Property division

Particularly complex disputes from a legal point of view are actions related to the division of property in the event of the death of one of the spouses in the presence of a marriage contract. Experts recommend indicating the order of inheritance not only in the will, but also in the marriage agreement.

According to the generally accepted rule, spouses are considered each other's heirs. If no legal documents have been drawn up regarding their property rights (marriage contract, property division agreement), then, in accordance with the legislative provisions, their shares will be recognized as equal, and inheritance will be carried out according to the rules:

• jointly acquired property is divided equally (conditionally) - one part will belong to the surviving spouse, the other belonged to the deceased;
• after which the share of the deceased citizen will be recognized as an inheritance mass and will be distributed among all heirs;
• if no will or gift agreement was left, then the surviving spouse will be included in the number of heirs;
• if the will was executed bypassing the surviving husband/wife, the surviving spouse will receive the share prescribed by law only if he was an official dependent of the deceased person during his lifetime. The portion will also be half of what he should have received by law.

After the death of one of the spouses, a prenuptial agreement will act as some kind of guarantee. It makes it possible to defend your share of property from subsequent inheritance division.

The inheritance amount established by law will be distributed among relatives by drawing up a specialized division agreement.

The document will be drawn up in simple written form, it indicates the clear shares of each of the heirs.

If you have questions, consult a lawyer

You can ask your question in the form below, in the online consultant window at the bottom right of the screen, or call the numbers (24 hours a day, 7 days a week):

Does a prenuptial agreement affect inheritance after the death of a spouse?

With the development of society, the marriage contract has become very popular among the population. It not only protects the interests of the spouses, but also helps to initially divide property obligations, and, if desired, even indicate their rights after the death of one of them. Today we will talk about whether a marriage contract after the death of a spouse affects the right of inheritance.

The marriage contract is intended to regulate the property relations of the spouses according to their voluntary agreement (Article 40 of the Family Code of the Russian Federation).

Marriage contract: highlights

A marriage contract is an agreement between spouses (present or future) on the division of property rights. It can be concluded both during marriage and before marriage. However, it will gain legal force after marriage and its official registration.

The following persons can sign a marriage contract:

1. Legally married spouses;
2. Future spouses.

Persons in a civil marriage cannot enter into a marriage contract with each other, since it can only come into force after the registration of a legal marriage. The exception is for future spouses who have written an application for marriage registration in the registry office.

The marriage contract is only in written form. For it to enter into legal force, notarization of the document is required (Article 41 of the Family Code of the Russian Federation).

The marriage contract is terminated when one of the following conditions occurs:

• After divorce;
• After the death of one of the parties;
• At the mutual desire of the parties.

In addition, the marriage contract will be automatically declared invalid if the spouses indicate in it a section on the regulation of personal relationships (Articles 40,42,44 of the Family Code).

However, spouses can agree on the regulation of property relations, as well as on the termination of the marriage contract. It is allowed to indicate in the document the wishes of the spouses regarding the division of property after the death of one of the spouses. You can read more in Article 43 of the Family Code of the Russian Federation and the official commentary to the law.

Spouses can leave in the marriage contract not only their wishes regarding property issues, but also the right of inheritance of their property by the second spouse.

Spouses cannot sign a marriage contract if:

• They are in a civil marriage;
• They are former spouses;
• If one of the spouses died.

For a marriage contract to be considered valid, it must contain the following clauses and sections:

1. Personal data of spouses (full name, date of birth, place of residence, passport details);
2. Property regime;
3. Rights and obligations of spouses;
4. The procedure for mutual maintenance;
5. Liability for failure to fulfill this agreement;
6. The procedure for resolving disputes under a marriage contract.

The marriage contract is regulated by the rules of law, namely, the Constitution of the Russian Federation, Family, Civil, Tax and Civil Procedure Codes. Inheritance issues must be specified in a special section of the marriage contract “Property Regime”.

Is it possible to include an inheritance section in a marriage contract?

As such, the rules for inheriting property of one of the spouses cannot be established in a marriage contract. The right of inheritance is the same for everyone and is established by the law of the Russian Federation.

You can dispose of your property after death using the following documents:

1. Deed of gift for property;
2. Will;
3. Agreement on the division of inherited property.

In order to protect the property rights of one of the spouses, it is possible to determine the regime of ownership of joint property under a marriage contract. It should directly indicate the order of inheritance, which will protect the second spouse from loss of property. More details in Article 42 of the Family Code of the Russian Federation.

In addition to the marriage contract, if the spouses want to regulate the legal relationship between future heirs, they can draw up a deed of gift or a will. According to the law, it is unacceptable to indicate the person who will receive the property of one of the spouses in a marriage contract, because there is a confusion between the two agreements.

Why do you need to contact a notary?

As we know, in order for a marriage contract to enter into legal force, it must be certified by the personal signature and seal of an official in a notary’s office. There are no exceptions to this rule.

If the spouses ignore the requirement to have the marriage contract certified by a notary, it will be declared invalid, since it deviates from the form prescribed by law.

How does a prenuptial agreement work after the death of a spouse?

Let us remind you that a marriage contract can only be concluded with a living spouse, and it will end immediately after the death of one of the parties.

However, Russian legislation has provided the opportunity for existing spouses to determine the regime of separate property after the death of one of them under a marriage contract. These legal relations are regulated by the Family Code of the Russian Federation, Art. 33.38.

• Don’t waste your time, call us, our telephone consultation is free, right now you will get answers to your questions!
• Phone in Moscow and the Moscow region: +7 (499) 653-79-33
• Phone in St. Petersburg and Leningrad region: +7 (812) 332-54-12

The main nuances of a marriage contract and its validity after the death of one of the parties:

1. Determining that property purchased with a spouse’s money remains his personal property and is therefore distributed among his legal heirs;
2. You can introduce a restriction on the appearance of relatives of the second spouse in the list of heirs, i.e. only his legal heirs can receive the inheritance;
3. Some of the amendments make it impossible for the second spouse to inherit the property of the deceased spouse.

Thus, the marriage contract slightly overlaps with the inheritance regulation of one’s property, thereby simplifying the management of inheritance matters.

The surviving spouse receives ownership only of his or her share of the property and cannot retain the property of the deceased spouse for his own use unless he is named in the will.

If the property regime was determined to be joint, then the inheritance of the deceased spouse will be 50% of the remaining property.

Marriage contract and will

The law strictly imposes restrictions on the independent regulation of property rights of spouses. That is, if the marriage contract allocates one’s own property shares, then this cannot deprive the second spouse of the right to inherit - Art. 256, 1150 of the Civil Code of the Russian Federation.

In this case, the estate that the testator owned under the marriage contract may be included in the estate left by the deceased, without going beyond its limits:

• Cash;
• Movable property;
• Real estate;
• Bank accounts;
• Securities.

However, in the first place, the surviving spouse, as a representative of the first line of inheritance, can inherit the property of the deceased, which belonged to him at the time of death. If the deceased did not have time to leave a will in the name of another heir, who will have priority over the surviving spouse.

If the surviving husband or wife is disabled, then by law they have the right to an obligatory part of the deceased spouse’s inheritance, even if there is a valid will for another person (Article 1149 of the Civil Code of the Russian Federation).

Thus, a marriage contract after the death of one of the spouses protects the personal property of the second spouse from division among the heirs. Moreover, if the deceased did not disinherit the spouse under the will, then he will be able to receive 100% of the inheritance if the testator does not have heirs with the right to an obligatory part.

Marriage contract and division of inheritance between legal heirs

Let us separately highlight the situation when the deceased spouse has heirs of the first priority, in addition to his legal wife/husband:

In this case, all personal property of the deceased, specified in the marriage contract, will be divided in equal shares between the heirs of the first priority. The other spouse's personal property will not be affected.

Thus, the spouse of the deceased testator will in any case receive at least half of the deceased’s inheritance, included in the list of jointly acquired property.

Documents for inheritance

Since collecting documents can take quite a long time, we advise you to deal with this issue in advance. So, to enter into the right of inheritance to the property of the deceased spouse, it is necessary to collect and submit to the notary the following documents (original plus copies):

1. Applicant's passport;
2. Marriage registration certificate;
3. Marriage contract;
4. Certificates from housing and communal services about the joint residence of the applicant and the testator during his lifetime;
5. Death certificate of the testator from the civil registry office;
6. Certificate confirming the death of the deceased spouse;
7. Birth certificate of the deceased's children, i.e. heirs of the first stage;
8. Birth certificate of the testator himself, for his parents to receive the inheritance.

If the deceased made a will, or the spouses signed a voluntary agreement on the division of the inheritance, then they also need to be transferred to the notary’s office: the original plus two copies.

Please note that Russian legislation is constantly changing and the information we write may become outdated. In order to resolve a question you have regarding Family Law, you can contact the site’s lawyers for a free consultation.

Marriage agreement after the death of one of the spouses

To draw up a will, the testator may well go to the notary alone. He has the right to dispose of his property in the way he sees fit.

Even if he wants to leave everything that belongs to him to his wife, then he does not have to involve her in his plans. Also, spouses can go to the notary together for the same purpose. The notary can propose a marriage contract.

“But can a marriage contract be concluded in case of death?” they ask.

It turns out that such cases occur quite often. This applies especially to older married couples when they want to put their property affairs in order. Then, after their death, their descendants will not have any troubles. Almost everyone knows what a will is. But not everyone is familiar with the concept of a marriage contract.

What is a marriage contract

This document represents a transaction concluded between spouses. Thanks to this, financial and property issues are streamlined, namely:

• in relation to determining the regime of property (that is, which one will belong to whom);
• in designating from what sources money appears;
• in relation to the distribution of costs;
• when establishing the rights and obligations of both spouses (for example, in the event of disability).

Is it possible to include provisions regarding inheritance of property in the event of death in a marriage contract?

But it will not be possible to provide for questions regarding inheritance in a marriage contract. If such instructions are indicated in it, the contract will be declared invalid (in part of this provision or in full). Inheritance is strictly regulated by law, and documents such as a will or an agreement on the division of property allow the disposal of property.

If the testator left behind a will, then the property is transferred to the heirs who are included in it, according to the shares indicated in it. In this case, the order of the heirs by law does not matter. But at the same time, persons who have the right to an obligatory share in the inheritance cannot be disadvantaged.

If the testator did not leave behind a testamentary document, then inheritance is carried out according to law. The first-priority heirs are the closest relatives. If they are absent, they belong to the next line, and so on.

But if before one of the spouses died, a marriage contract was concluded between them, and the inheritance of his property has its own characteristics.

How does a prenuptial agreement affect inheritance?

The presence of a marriage contract after the death of one of the spouses has an impact on issues of inheritance of property. Of course, it should not contain clauses regarding the disposition of the property of the husband or wife after the death of the spouse. However, indirect influence, one way or another, will take place.

Attention! This is also stated in a document such as GD of the Supreme Court No. 9 dated May 29, 2012. According to it, the inheritance mass includes the personal property of the testator, as well as his share in the joint property acquired during marriage, regardless of whose money it was purchased, but in the event that the marriage contract does not provide otherwise.

Thus, this document may establish a different regime for property owned by spouses. In addition to joint, there is a separate regime. If the husband and wife agree on the issue that the property should not be common, but separate, then upon the death of one of them, only the property that belongs to only one of the spouses will be included in the inheritance estate.

Example

It is convenient to understand this with a clear example. The spouses entered into a marriage contract, which states that all property acquired during marriage belongs to the one who bought it or with whose money it was acquired.

So, if a wife bought kitchen utensils, and a man bought three cars, then after the death of his wife, the following situation will arise. In the absence of an agreement, half of the jointly acquired property would be included in the estate.

That is, both cars and kitchen utensils would be shared. But since the contract has been concluded, the cars cannot be divided. This property is the husband's personal property.

Therefore, kitchen utensils are subject to division, one of the heirs of which, among others, is also the widower.

As you can see, despite the fact that the marriage contract did not say a word about inheriting property after the death of one or another spouse, the difference in this matter, depending on the presence or absence of a document, can be enormous.

Marriage agreement after the death of a spouse

The question may arise in connection with whether the marriage contract ceases to be valid in the event of the death of one of the spouses.

After all, the general rule on it states that the effect extends to the period of life of the spouses or during their life together. From this it seems logical that the contract should be terminated upon the death of the husband or wife.

At the same time, certain consequences created by this document remain even after it has ceased to be in effect.

However, others have remained relevant. Kitchen utensils belonging to the wife will be divided among the heirs. But the cars continue to be owned by the husband. Termination of the agreement leaves these provisions unchanged.

Costs for registering an agreement

In order for a contract to be drawn up well, it often requires the help of a specialist who can take into account the interests of one and the other party. Not in all cases the standard form of agreement is suitable for spouses.

If a husband and wife apply to a notary office with a ready-made agreement, they only need to pay a state fee, the amount of which is 500 rubles. This is stated in Article 333.24 of the Tax Code.

Important! If the spouses turn to a notary to help draw up a document, the costs will increase. The implementation of this service will require additional time from the notary, so it is paid separately. The specific amount depends on the region of residence. But in the country as a whole, the service will cost about 5,000 rubles.

Is it possible to challenge a marriage contract after the death of one spouse?

Almost any contract can be challenged. The main condition is that its provisions directly or indirectly affect the legitimate interests of the applicant.

The plaintiff must be able to substantiate the claims, as well as provide written evidence according to which the contract, in his opinion, is illegal.

Often, banking institutions act as plaintiffs in such cases.

Example

As an example, consider the following case. Sberbank filed a claim that the marriage contract is invalid. The defendants were the borrower and his wife.

The borrower took out a large sum of money on credit from the bank. However, he did not return the money, resulting in a large debt.

As a result of the trial, a settlement agreement was concluded.

But the borrower did not fulfill his obligations in accordance with it. The court issued the plaintiff a writ of execution to collect the debt, in accordance with the terms of the loan agreement. When this agreement was concluded, the husband and wife were legally married.

After a settlement agreement was concluded with the bank, the husband and wife entered into a marriage contract. According to its terms, liquid property that could be sold in order to collect the debt became the property of the spouse.

After this, the couple divorced.

According to the banking institution, a prenuptial agreement is an imaginary transaction concluded to prevent debt collection through the sale of the husband’s share of joint property. The defendants did not recognize the claim. Nevertheless, the court found the plaintiff’s claims to be fair and the marriage contract invalid.

This is a real life incident. But the case can be considered in a similar way when, after concluding an imaginary transaction, one of the spouses died.

However, it will be impossible to challenge a marriage contract upon the death of one of the spouses if it was concluded in compliance with all the rules and regulations in force by law.

Conclusion

The marriage agreement is the fundamental document for the division of property in the event of a divorce. Moreover, the document indirectly affects the distribution of property after the death of the husband or wife.

The main reason for this situation is the special property regime chosen by the spouses. Under the normal joint regime, inheritance is carried out according to the general provisions of the law (that is, equally).

Under the separate regime, only the property of the deceased, which belonged to him personally, is included in the estate.

When a marriage contract is concluded in compliance with the law, it is impossible to challenge it.

But if it is illegal, and this can be proven (as in the above example with a banking institution), then the document may be declared invalid.

In this regard, the party to the agreement will not suffer any legal consequences. However, inheritance of jointly acquired property upon the death of one of the spouses will be carried out in a general manner without taking into account the terms of the agreement.