The institution of marriage in our society retains its position. Therefore, the concept of “illegitimate children” carries some kind of vicious meaning.
In this regard, there is a belief that children born outside of a formal marriage have fewer rights than those born within marriage. In particular, they are limited or deprived of inheritance rights.
Is it so?
Illegitimate children and inheritance law
Family and civil legislation does not divide children based on whether they were born in marriage or not - they have the same rights and obligations, including in the area of inheritance.
According to Article 1142 of the Civil Code, the legal primary heirs are the children of the testator, as well as the parents and husband/wife.
However, not a word is said about which children:
- those born in and out of wedlock;
- relatives and adopted children;
- adults and minors;
- living together or separately with the testator.
They all have equal inheritance rights. Including children whose parents were deprived of parental rights.
The only condition for inheritance by children after the death of parents– parenthood (paternity and maternity) must be recognized, established or proven.
Children claiming an inheritance must present to the notary proof of family ties with their parents - birth or adoption certificate, as well as a court decision establishing paternity.
Establishing paternity
If there are practically no difficulties in establishing maternity, then the issue of establishing paternity is raised much more often. It is no coincidence that the Family Code of the Russian Federation determines the procedure for establishing paternity.
Through the registry office
According to Article 48 of the RF IC, a father and mother who have not entered into marriage must submit a joint application to the registry office. The child's birth certificate contains information about both parents. In this way, the man confirms his paternity.
If the mother has died, been declared incompetent, or deprived of parental rights, if the mother’s place of residence is unknown, only the father submits the application. This must be given the consent of the guardianship and trusteeship authority, and in the absence of such consent, a court decision is necessary.
Through the court
If a man does not recognize paternity, it can be established or refuted in court. Including posthumously(for example, if a child claims to inherit after the death of a person whose paternity has not been established).
The judicial procedure for establishing paternity is regulated by the Family Code of the Russian Federation - Articles 49 and 50.
If a child was born to a man and woman who are not legally married, they should submit a joint application to the registry office. If a joint application has not been submitted, paternity can be established through the court.
A corresponding application can be filed with the court...
- Father or mother;
- Guardian/Trustee;
- The person who is dependent on the child;
- The child himself, who has reached adulthood.
The court accepts any evidence of the child's origin from the father. This could be letters, recordings of telephone conversations, witness statements, as well as the conclusion of a genetic examination.
Thus, even if a man did not recognize his paternity over a child born out of wedlock (he did not submit a joint application to the registry office with the child’s mother), his paternity can be recognized through the court. Moreover, both during life and after death. This can be done not only by the mother, but also by the child himself, claiming the inheritance.
Inheritance by an illegitimate child under a will
From the above it is clear that illegitimate children are the same heirs as those born in marriage.
But this is by law - in the absence of a will.
If the testator leaves a will, only those whom he appoints as heirs will inherit his property.
Thus, a father can exclude his illegitimate children from the number of heirs, and bequeath all property only to children born in a legal marriage. Or vice versa - bequeath everything to illegitimate children. Or divide the inherited property equally.
In other words, dispose of the inheritance at your own discretion.
Mandatory share
However, do not forget about the obligatory share in the inheritance. This is the part of the inheritance that is received by the legal heirs of the first priority who are deprived of a will (children, spouses, parents). An important condition for receiving a compulsory share is minority or incapacity for work (disability and pension).
Latest questions on the topic: ""
How to draw up documents for an apartment so that the child from the first marriage is not an heir?
Hello, my name is Zhenya. My husband has a 9-year-old daughter from his first marriage, we have been married for 4 years, we have a 1-year-old son, we want to take out a mortgage for a two-room apartment. I would like to know how to draw up documents so that my husband’s daughter is not an heir, because... During the divorce, the husband left his first wife a three-room apartment, but this was not documented and the daughter, having a three-room apartment, can also lay claim to our jointly acquired property.
Zhenya Larionova, Blagoveshchensk
Can children from a first marriage claim an inheritance?
How to formalize a divorce without dividing property so that children from the first marriage cannot claim the right to inherit?
Dear lawyers, please help me figure this out!
My husband and I were married and bought an apartment with a mortgage, registered in the husband’s name. Now, as a formality, we need to get a divorce, we would like it without dividing the property. We are not selling the apartment, we are then paying off the mortgage. What is the best way to deal with property in order to protect yourself in the future and not lose anything? My husband has a child from his first marriage and our common child. If you conclude a marriage contract with a notary, will it be 100% protected, or can the ex-wife challenge it (if God forbid, a bad case happens!). And what should be specified in the contract.
Thanks in advance for your answer!
Maria, Moscow
Can children from a first marriage claim an inheritance?
Lawyer: Lidia Popova
offline now
Maria, good day. You can sign an agreement on the division of property at a notary, and indicate there what belongs to whom, you can sign a marriage contract. I will say that this does not give you a 100% guarantee, since even a marriage contract can be challenged, but 90% of the time it works in most cases, and in general, marriage contracts are quite difficult to challenge. The main thing is that the agreement or prenuptial agreement is drawn up correctly, so that there is nothing to complain about later.
Lawyer: Lidia Popova
offline now
Even if you register everything in your own name, this is property acquired during marriage, and in any case it is subject to division. The only thing you can do is re-register everything by formalizing a gift deed. But if you pay a mortgage, you are unlikely to be able to arrange a donation. Now I carefully read your question again and don’t quite understand, how can the ex-wife now lay claim to the property that you and your spouse have acquired at the present time?)))
Lawyer: Lidia Popova
offline now
Well, you already have a child, and if your husband dies, you and the child from your first marriage will have equal rights. Now if you are married, then in the event of death you will have more than half of the property, because you are a spouse and you also have a child. If you already own an apartment, let your spouse draw up a deed of gift for you, then all the property that your spouse gives you during his lifetime will be yours only and the child from your first marriage will not receive anything.
Lawyer: Lidia Popova
offline now
In the event of the death of your spouse, 1/3 of the husband's share will be divided, and if the notary does not miss anything, then everything that was acquired jointly during the marriage. If the notary does not do this and if the other party has good lawyers, then the spouse’s share will be allocated and divided among all heirs. The only way out for you is a deed of gift. In other cases, the property will be divided.
Lawyer: Lidia Popova
offline now
100% of yours is only a deed of gift. All other transactions can be challenged, there is no 100% result and there will not be. You can divide the apartment, but with good lawyers, everything will be divided between the relatives and you. There are chances, but I cannot foresee the outcome of events.
Lawyer: Lidia Popova
offline now
Maria, unfortunately, this is also unlikely to help. With a good evidence base, yes, it is possible. But! The problem is that this is property acquired during marriage. According to the norms of current legislation, Article 34 of the RF IC. Joint property of spouses
1. Property acquired by spouses during marriage is their joint property.
2. Property acquired by spouses during marriage (common property of spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose ( amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.
Hello, dear Zinaida!
First of all, let’s not forget that inheritance must take place by will, and a citizen has the right to bequeath his property even to the Pope. But if it happens that a person dies without leaving any will (as happens in most cases), then inheritance occurs according to law. The rules governing the order of inheritance are established in part three of the Civil Code of the Russian Federation. Here's what it says:
It does not specify whether we are talking about children born in marriage or out of wedlock. Yes, it doesn’t matter at all! Children have equal rights, regardless of whether their parents were in a registered marriage. It is no coincidence that Article 48 of the Family Code of the Russian Federation regulates the procedure for establishing the origin of children.Article 1142. Heirs of the first stage
1. The heirs of the first priority by law are children , spouse and parents of the testator.
3.
Paternity of a person not married to the child's mother,
established by filing with the civil registry office
joint statement
father and mother of the child; in the event of the death of the mother, recognition of her
incompetent, impossibility of establishing the whereabouts of the mother or in
in case of deprivation of her parental rights - at the request of the child’s father with the consent of the guardianship and trusteeship authority, in the absence of such consent - by court decision.If there are circumstances that give reason to believe that the filing
a joint declaration of paternity may appear after
birth of a child is impossible or difficult, parents of the future
children who are not married to each other have the right to submit such an application
to the civil registry office during pregnancy
mother. A record of the child's parents is made after the birth of the child.
That is, either paternity is registered by the registry office or not. Perhaps, of course, by “refused to give his last name” you meant that the man refused to legally recognize himself as the father? In this case, he will be able to make these citizens his heirs exclusively by will.
But if their father died without leaving a will, then even in this case he can be posthumously recognized as the father. Here the procedure is regulated by the norms of Articles 49 and 50 of the RF IC.
In short, if paternity is already legally established, then there is no difference between children born in marriage and illegitimate offspring. But even if it is not officially formalized, it cannot be ruled out that even after the death of a citizen, the court will be able to recognize him as the father. And then the children for whom his paternity is recognized will be able to claim the inheritance.Article 49. Establishment of paternity in court
If a child is born to parents who are not married to each other,
and in the absence of a joint statement of the parents or a statement of the father
child (clause 4 of article 48
of this Code) the origin of the child from a specific person
(paternity) is established in court upon the application of one of
parents, guardian (trustee) of the child or at the request of the person
whose dependent child is, as well as at the request of the child
child upon reaching adulthood. In this case, the court accepts
attention to any evidence that reliably confirms
the origin of the child from a specific person.Article 50. Establishment by the court of the fact of recognition of paternity
In the event of the death of a person who recognized himself as the father of the child, but did not
was married to the child's mother, the fact of recognition of paternity by him may
be established in court according to the rules established
civil procedural law
A separate chapter of the Russian Civil Code is devoted to hereditary issues. It consists of a number of rules that determine the procedure for receiving the property of the deceased, challenging it, and also establish methods for dividing the received property.
Meanwhile, it is this section that causes a lot of controversy. The situation becomes more complicated when there is no will. Accordingly, the will of the deceased is not expressed. This means that the inheritance must be divided based on the provisions of the law.
How is the inheritance divided between the wife and children from the first marriage?
If a will exists, the problem is resolved initially. This document determines the circle of successors and the share of each in the total assets of the person. When there is no expression of will, inheritance is carried out according to law.
The question of whether adult children from a first marriage have the right to inheritance is very relevant. Often, children from previous marriages lay claim to the fortune. One of the key concepts in this situation is the concept of order of receipt.
In the absence of a document (will), the order is regulated by law. Clear rules have been established in this regard. According to the law, the priority right to inheritance belongs to the first-rank successors.
Their circle is also determined by law. It is comprehensive and cannot be broadly or arbitrarily interpreted. The first priority should include the spouse and children. They are considered the closest relatives.
In this case, all children are included first, regardless of the dissolution of the marriage between their parents. But only children who are officially recognized as such can be the first. That is, the deceased must be indicated in the birth certificate or family ties must be established through the court.
An experienced legal consultant will help resolve any controversial situations related to receiving an inheritance. Contact the person who has registered the right to operate in your city. List of candidates
Shares in inheritance according to the law between spouses and children from the first marriage
The deceased testator is both a husband to his wife and a father to his son or daughter. As stated above, all named persons have priority. With them, other relatives are not allowed to share the property. They have an equal right to receive a share.
In this case, the union between spouses must be formally registered in the registry office. Otherwise, the spouse will not have a share of the right to it. All of these persons are entitled to shares in the property.
However, there is an important nuance. Marriage means running a joint household. All property acquired during marriage is the common share of the spouses.
This means that the inheritance will first be divided into two parts. Half of the assets acquired during the specified period will go to the spouse. It will not be included in the inheritance at all, since it is the property of the spouse.
And the remaining half will already be inherited by persons from the first line. For example, if the inheritance is an apartment, then after death, half of it will go to the wife or husband of the testator. But only if you buy an apartment during marriage.
Only half of it will be inherited. If the successors are a wife and two children from different marriages, then the specified half of the apartment will be divided between the specified three persons.
Do children from a first marriage have the right to inherit if there is a will?
A will is a universal form of distribution of shares in the property of the deceased. In this case, receiving your share is determined based on the contents of the will. Only the will of the deceased matters.
The second husband and children from the first and subsequent marriages will receive the property specified in the will. The law provides for the concept of an inalienable share. This means that some persons receive an unconditional privilege to share.
The law includes children, disabled parents, and dependents who lived with the deceased at the time of his death as such persons.
The listed categories of persons inherit shares regardless of the will stated in the will.
The volume of the obligatory share is determined according to the provisions of the law. It cannot be less than half the size that the face received.
If, according to the law, the size of the share would be 100,000 rubles, then this size will be no less than 50,000 rubles.