Is the marriage contract valid after the death of one of the spouses? Who has the right to dispute a will and how to do it? Challenging the right to inheritance by will.

31.10.2021 | Rent

In connection with the increasing cases of disagreement between relatives and the will of the testator, questions arise, how is the dispute of the inheritance carried out? Lawyers will help to explain the legal grounds and terms for appealing a will, the rights of heirs under the law.

In accordance with the procedural procedure established for the appeal of a will, the limitation period is taken into account. Therefore, we will consider the aspect of the application of the statute of limitations when it occurs:

challenging the right to inheritance;
invalidation of a will;
revocation of the testamentary act.

To file this claim with a court, there must be a compelling legal basis, the list of which is given by the legislator in the norms of the Civil Code of the Russian Federation.

In addition to appealing a will, with which the interested parties do not agree, there is a legal possibility for challenging the inheritance under the law. This applies to the order of successors, recognition of the heir unworthy, deprivation of the heir of a part of the inherited property in court.

Reasons to dispute inheritance

In order to invalidate or unlawful inheritance, there are certain reasons:

Incorrectly executed documents.
An improperly written will.
Unworthiness of the heir.
Revealing new facts of the life of a deceased relative and new applicants for the inheritance.

This is not a complete list of the grounds on which the inheritance is challenged in court. The judicial procedure for the protection of the rights of heirs includes:

confirmation of the facts of relationship with the deceased;
cohabitation with the testator;
actual acceptance of the inheritance;
extension of the terms for inheritance.

If there are several heirs by law, then they can agree among themselves to pay a certain amount of compensation for giving up their share of the inheritance. With the obligatory notarization of such a transaction. The refusal of one of the heirs from the inherited property in favor of the other heir occurs in writing. The issue of compensation is resolved only by agreement.

In the absence of a will, inheritance occurs in accordance with the procedure established by law. The degree of kinship, the fact of living with the testator at the time of his death is taken into account. These factors affect the actual inheritance. After challenging the documents, the property, which was registered without sufficient grounds, is returned to the general estate.

The law provides for the possibility of extending the missed term for challenging if the heir recently learned about his violated right to inheritance.

For example, he was on a long trip abroad, he was not notified about the death of a relative, etc. The concept of the term for entering into an inheritance and the possibility of its extension through the court, due to valid circumstances, are confused with the term for appealing legal actions to accept the inheritance or violation of rights. These are completely different concepts.

The general limitation period applicable by the courts when considering inheritance cases is three years. The term is calculated from the moment when the person learned (could have learned) about the violation of his rights to inheritance.

Contesting the inheritance in court occurs at the suit of the successors of the heirs who do not agree with the distribution of shares of the property, or will.

Contestation of inheritance under the law is possible in the case when an unworthy heir has entered into property rights. Such is a person who influenced the commission of the death of the testator by deliberate, illegal actions. These include close relatives.

Challenging the right to inheritance by will

Abolish the property of the heir under the will, possibly in a judicial proceeding. The person concerned has the right to file a claim to invalidate it due to certain circumstances.

The law recognizes as such circumstances:

incorrectly drawn up document;
intentional negative impact on the psyche and the will of the testator to receive an inheritance.

The limitation period also applies to claims of this kind. The term can be extended by submitting an application with justification of the validity of the reason for missing the term.

As with every legally significant document, a specific form is established for a will. Failure to comply with this form entails its invalidity. This is important to consider when writing a will. A person, when drawing up a will, must be in a capable state, be aware of the significance of his actions.

The property acquired in marriage is the joint property of the husband and wife. However, after the death of one of them, controversial situations often arise. Let us understand in the article how the marital share in the inheritance is determined and formalized according to the law after the death of the spouse.

All property acquired by the spouses during the marriage is recognized as their joint property. An exception is the presence of a marriage contract, which stipulates otherwise, or an agreement that includes an indication of the division of property.

In general terms, joint property is:

income of a husband and wife from any kind of activity;
inappropriate social benefits and pensions;
movable and immovable property, securities, deposits, shares in the capital of commercial organizations, if these things were acquired from total income;
other property acquired during legal marriage.

It does not matter in whose name the items were purchased, who exactly contributed the money and for whom they were issued. The main thing is that at the time of purchase, the marriage was officially registered by the registry office.

All of the above applies to property acquired for compensation by the spouses. If something was received by inheritance or gift, then it will not be joint property. The same goes for personal items other than jewelry and luxury items. This is regulated by Art. 36 of the RF IC.

After the death of a husband or wife, the second spouse is entitled to a part of the joint property acquired in the marriage. The shares of the spouses are equal and amount to 50% for each. The estate will include only part of the property belonging to the deceased spouse.

For example, a husband and wife have a house that they purchased under a sales contract during their marriage. After the death of one of the spouses, only the part of the house that belonged to him, that is, half, will enter the hereditary mass. The second half remains with the surviving spouse and will not be inherited.

This spouse also participates in the division of the estate. Let's say the testator has a son and a wife. They both come and share half of the house equally. As a result, the wife will own her legal half and ½ of the part of the house that belonged to her husband. The son will receive ¼ of the whole house.

Mandatory spouse's share by law

Inheritance can take place by law or by will. If by the last will the deceased deprived the husband / wife of the inheritance, the allocation of the compulsory marital share will still occur. It is impossible to deprive this legal part of the common property.

It is also possible that the spouse does not take into account that part of the property belongs to the husband / wife when drawing up the will. For example, he bequeaths the entire apartment to the children, not taking into account that half of the living space belongs to the spouse. In this case, the will is challenged in court or the issue is regulated by an amicable agreement with the heirs.

Do not confuse the right to a compulsory share in the inheritance under Art. 1149 of the Civil Code of the Russian Federation and compulsory marital share are legally different concepts. According to this normative act, a disabled spouse has the right to receive a share in the inherited mass equal to at least half of the part of the inheritance that would have been assigned to him as the heir of the first priority.

For example, a woman has an apartment purchased before marriage. The legal heirs are her husband and daughter. The woman made a will, according to which the apartment becomes the property of her daughter, and the husband does not get anything. However, the husband had previously lost his ability to work. For this reason, he has the right to count on a mandatory share in the inheritance, namely ¼ of the apartment - half of the part of the inheritance that he would have received if his wife had not deprived him of this right by a will.

Husband / wife may be deprived of the compulsory share if recognized by court order. But even in this situation, they cannot be deprived of their marital share.

How do you get a marital share?

To accept the inheritance after the death of your husband / wife, follow the step-by-step instructions below.

Stage 1. Finding out the order of inheritance

Property can be distributed by law or by will. If there is a will, the division of the estate will take place in accordance with its content. The only exception will be the situation when the right to a compulsory share is exercised. According to Art. 1149 of the Civil Code of the Russian Federation, the testator cannot deprive the following persons of the right to inherit:

minor or disabled children;
disabled parents;
disabled spouse;
dependents who were supported by the testator.

If there is no will, the inheritance will take place in the manner prescribed by law. The priority established by civil law will apply here (Art. Art. 1142-1145).

Relatives belonging to the same queue inherit the property in equal shares. If there are no heirs of one queue, the right passes to persons from subsequent queues. The primary heirs are children, parents and spouse.

If the heirs do not plan to dispute the shares, there is no corresponding court decision or marriage contract, then half of the joint property of the spouses will be included in the estate. This part will be inherited by husbands / wives alone or distributed among all heirs of the first order in equal shares.

Stage 2. Acceptance of inheritance

To accept an inheritance, you need to contact a notary in charge of inheritance and write a corresponding statement - about accepting the inheritance or issuing a certificate of the right to inheritance. As a rule, you should contact the notary office at the last place of residence of the testator.

The citizen has the right to choose the type of application to be submitted independently. However, it is recommended to make a request for a certificate, since it automatically assumes that the heir has accepted his share of the property, even if there is no separate document about this.

You can accept the inheritance within six months from the date of opening the inheritance case. It coincides with the date indicated in the medical certificate of death or the court decision.

If the six-month deadline has been missed, it can only be restored in court. To satisfy the claim, you will need to prove in court that the deadline was missed for a good reason. For example, in connection with a serious illness or long-term residence abroad without the possibility of leaving.

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Stage 3. Preparation of documents for registration

The notary issues a certificate of the right to inheritance on the basis of certain documents. Required papers include:

documents confirming the fact of death - death certificate, court decision;
papers serving as the basis for calling for inheritance - will, marriage certificate;
documents confirming the existence of the property right of the testator to the property - a certificate, an extract from the USRN, etc .;
an opinion of an independent appraiser on the value of the property or confirmation of the value received from authorized organizations (for example, BTI).

The issuance of a certificate of inheritance is subject to a state fee. Its size for the closest family members, to whom the spouse belongs, is 0.3% of the value of the inheritance, but not more than 100 thousand rubles.

This is not an exhaustive list of documents. The notary has the right to demand other papers as necessary.

Stage 4. Obtaining a certificate of the right to inheritance

The certificate is issued after six months from the date of death of the testator. You need to get it from a notary after providing the required documents.

The certificate of inheritance can be issued before the expiration of six months. For this, the notary should have no doubt that there are no other heirs who can apply for registration of the share.

Allocation of a spousal share - agreement or claim

In hereditary matters, disputes often arise. Sometimes it is difficult to determine whether the property belongs to the jointly acquired property. For example, if a car was donated by a husband to his wife, of course, without drawing up a donation, then by law it is the joint property of the spouses, since it was acquired in marriage. However, the wife considers it to be her property, which is quite justified.

In case of disputable situations, there are two ways out:

Conclusion of an agreement in writing on the division of the estate.
Applying to the judicial authorities with a claim challenging the procedure for dividing the inheritance.

Let's consider each option in more detail.

Conclusion of an agreement

Civil law provides for the possibility of free conclusion of contracts between citizens (Article 421 of the Civil Code of the Russian Federation). If this does not contradict the current legislative norms, the heirs have the right to conclude any agreement on the division of the estate.

The agreement is made in writing. It is necessary to bring it to the notice of the notary, about which the specialist will put an appropriate mark on the document. Without notarization, the agreement will have no legal effect.

By agreement, a compulsory marital share can be allocated. The text and form are not specified in the legislation. In fact, these are the agreements of family members set out on paper on the distribution of the testator's property.

However, relatives do not always manage to agree peacefully. Most often you have to go to court.

Filing a statement of claim

A claim for the allocation of a compulsory marital share has a strictly established form. Otherwise, it is not accepted by the judicial authorities for consideration.

The claim will be the protection of property rights in relation to jointly acquired property in marriage with a deceased spouse. The plaintiff is the husband / wife of the testator, the defendants are the other heirs.

The statement of claim must contain the following information:

the name of the judicial institution;
data of the plaintiff and defendants - full name, contact information, registration address and actual place of residence;
cost of the claim - the estimated value of a share of jointly acquired property;
statement of circumstances - date of death of the spouse, list of property, essence of the disputable situation;
the requirement to the court is to allocate the husband / wife's share in the joint property and recognize the property rights of the plaintiff to this property;
list of attached documents;
date of filing the statement of claim.

The statement of claim is accompanied by a certificate of marriage and death of a spouse, a marriage contract (if any), a will (if drawn up), documents of title to the disputed property. Other papers related to the case may also be attached.

Refusal of a marital share in an inheritance

The share of the surviving husband / wife can be included in the estate only if he / she writes a statement on the refusal to separate the property from the jointly acquired property.

The ability to abandon the allotment is provided for by Art. 9 and Art. 236 of the Civil Code of the Russian Federation. The writing of such a statement implies, among other things, the waiver of ownership of this property.

The notary has no right to obstruct the writing of the refusal. His duties include only clarifying the legal framework and the legal consequences of such a statement. On the basis of this paper, the notary will include the surviving spouse's share in the total estate and divide it among all the heirs in a standard manner.

If there is no such statement, the notary has no authority to include the marital share in the estate. However, sometimes the wife / husband writes a statement that the inheritance does not include the joint property of the spouses. Judicial practice has many examples where such a statement was contested.

Adjustment of the surviving spouse's share of inheritance

In general, the joint property of the spouses is divided equally. However, the legislation provides for situations in which the share can be adjusted up or down.

In accordance with Art. 39 of the RF IC, the grounds for adjustment may be:

the spouses have children who have not reached the age of majority;
disability of the husband / wife;
damage to the family by the husband / wife.

The last point includes alcohol or drug abuse, gambling addiction, income evasion, indifference in family life, etc.

If you have any questions or disputes, seek legal advice. You can get free legal aid on our website.

Now you know how the marital share in the inheritance is allocated according to the law after the death of the spouse. It is not always possible to resolve the issue peacefully. If you need to go to court, you cannot do without the help of a competent lawyer.

Even after the death of a husband or wife, a well-drafted prenuptial agreement can continue to act, thereby protecting the property rights of the surviving spouse. Its presence greatly facilitates and speeds up the process of distributing the inheritance between the relatives of the deceased and his other half.

When drawing up an agreement, it is important to observe the absence of grounds on which it can be declared invalid in court. Only taking into account the above, the prenuptial agreement can become the guarantor of your property rights.

Is the prenuptial agreement in effect after the death of one of the spouses?

In order to understand this difficult issue, you should refer to Art. 16 of the RF IC, which defines grounds for terminating the marriage, which include:

death of one of the married couple or recognition as deceased by a court decision;
dissolution of marriage at the request of the spouses or one of them.

Thus, the death of a husband or wife practically serves grounds for termination of a marriage contract(Art. 43 of the RF IC), with the exception of cases when the text of the agreement contains provisions that extend their effect to the property rights and obligations of spouses after a divorce or death of one of them.

So, if the agreement establishes the regime separate ownership, then even after the death of one of the married couple, the property belonging to the surviving husband or wife in marriage will belong only to him and will not be included in its composition when determining the inheritance.

Considering the above, we can conclude that a marriage contract or some of its positions may be valid after the death of a spouse, but the following should be taken into account:

It should not define rights that arise from the death of a husband or wife. Since in this case the rules of inheritance law come into effect, and the contract may be invalidated.
When drawing up the document, special attention should be paid to the period of its validity and to the consequences that occur in the event of the termination of the marriage, including due to the death of one of the spouses.

Division of property in the event of the death of a spouse in the presence of a marriage contract

The division of property rights in the event of the death of one of the spouses in the presence of a marriage contract means determination of inheritance, due to close relatives of the deceased by law and part of the property that, under the contract, remains in the ownership of the surviving spouse and not subject to inclusion in the estate.

If a separate property regime is established for a certain property by a marriage contract, then the spouse acquires ownership of this property from the time when the contract is concluded or when the property specified in the agreement is acquired.

Ownership remains unchanged in the event of the termination of the marriage, including due to the death of the other spouse.

A.P. Zakharova applied to the court. with a statement of claim, in which she stated the following: her father Zakharov N.P. was married to K.I. Zakharova. As spouses, they entered into a marriage contract, according to which the apartment they bought together in the name of the wife was only her property, the contract did not apply to the rest of the property. The plaintiff declared the requirement to declare the marriage contract invalid, due to the fact that the marriage relationship was terminated by the death of her father, and asked the court to include the apartment in the estate along with other property.

The court, having studied the materials of the case, rejected the plaintiff's demands, arguing that the ownership of the apartment at Zakharova K.AND. arose from the moment of the conclusion of the marriage contract. The termination of the marriage relationship due to the death of her spouse is not a ground to dispute this fact. By a court decision, the plaintiff is entitled to ½ of the property of the deceased, without including in this property the apartment owned by K.AND. Zakharova. under contract.

It is a grave mistake to try to include elements of a will in the contract. In this case, he will be recognized as null and void, and the distribution of property rights between the spouse of the deceased and his close relatives will be carried out in accordance with the law in accordance with Ch. 63 of the Civil Code of the Russian Federation.

Invalidation of a marriage contract in the event of the death of a spouse

After the death of a husband or wife, a marriage contract concluded between them may be challenged by the heirs of the deceased. The purpose of relatives who decided to go to court with a claim to invalidate the contract, there will be a desire to increase their share in the inheritance.
If the spouses succeeded in drawing up the document:

circumvent the conditions for recognizing a transaction as invalid, both established by the family code (Article 44 of the RF IC) and common to all transactions (Chapter 9, paragraph 2 of the Civil Code of the Russian Federation);
the agreement was drawn up in compliance with all the rules of law;
has a written form and is certified by a notary.

In the above cases, they can be calm that their will will not be disputed by close relatives, in the event of the death of any of them.

We also emphasize once again that the reason for the invalidity or nullity of the marriage contract may be the provisions included in it concerning alimony for children, the division of inherited property, an attempt to settle personal relationships.

An agreement concluded under pressure, threats, if one party deliberately misled the other, will be recognized as invalid. The only moment that these facts will have to be proved in court by the relatives of the deceased, and this will be quite difficult to do due to the absence of a deceived person. And the evidence must be reliable and irrefutable.

The contract concluded by in a civil marriage... Since in accordance with Art. 40 of the RF IC, a marriage contract can regulate the property rights of persons wishing to enter into a marriage union or who are already a legal husband and wife.

Judicial practice of challenging a marriage contract after the death of one of the spouses

If a married couple has been prudent and, in addition to settling their property relations by a marriage contract, foresaw the interests of the heirs, having drawn up a will, then questions about challenging the contract will disappear by themselves.

Often, the issue with the heirs remains unresolved. As a result, the relatives of the deceased and the surviving spouse are faced with the need to determine their property rights in court. Of course, if it is not possible, agree peacefully within the framework of the law.

In practice, the heirs quite often they try to challenge the prenuptial agreement... Since its recognition as invalid leads to an increase in the share in the inheritance. As mentioned earlier, there are many reasons for this, both general and arising from the norms of family law. Therefore, the preparation of this document must be taken seriously, resorting to the help of lawyers.

Davydkin T.S. applied to the court, with a claim, in which he asked, to recognize the marriage contract concluded between his father and stepmother as invalid. Under the agreement, the stepmother became the owner of the apartment, car and land plot acquired in marriage, in the event of termination of the marriage relationship. Davydkin motivated by the fact that the contract did not contain an indication of the acquisition of ownership of the above property in the event of death. In this connection, in his opinion, the property of his father should be inherited by law without taking into account the marriage contract.

The court rejected the claim. In his decision, the judge explained the following: given Art. 16 of the RF IC, one of the grounds for terminating a marriage is the death of a husband or wife. Based on this, the condition of the contract on the acquisition of ownership of the specified property in connection with the termination of the marriage was observed. The plaintiff was assigned ½ of the property, which is not covered by the marriage contract.

In this case, the document was drawn up correctly, but there are many examples when a court decision invalidates an agreement in whole or in part.

L.P. Kudryashova applied to the court. with a statement on the recognition of the marriage contract concluded between her mother and stepfather as invalid. In a statement, she explained that according to the agreement reached by them, the stepfather became the owner of the residential building acquired in marriage after the termination of the marriage relationship. With this in mind, he shies away from the division of the house under the law of inheritance. The plaintiff explained that, in her opinion, the contract should be challenged, since during the life of the mother, the spouses did not have time to certify it with a notary.

The court satisfied the plaintiff's claims in full. Since the marriage contract is subject to mandatory notarization (Article 41 of the RF IC). Otherwise, it is invalidated. The disputed property was fully included in the hereditary mass, and was divided in accordance with Ch. 63 of the Civil Code of the Russian Federation.

Thus, a marriage contract, like any transaction, cannot be attributed to indisputable documents. Both during the life of the spouses, and after the death of one of them, it can be declared invalid at the request of one of the parties to the contract or the heirs of the deceased.

Questions from our readers and the consultant's answers

My husband and I entered into a marriage contract on a separate regime of ownership. He is currently terminally ill. From the first marriage, the spouse has two children. I am interested in the question of how the inherited property will be distributed between me and my husband's children in the event that he does not draw up a will?

Since you have entered into an agreement on the separate regime of ownership, all the property acquired by you in marriage and registered to you will remain your property and will not be included in the estate. The inheritance will consist only of the spouse's property, which will be divided equally between you and his children (Article 1142 of the Civil Code of the Russian Federation).

My husband died a month ago. In marriage, we bought a country house, formalized it in my name and entered into an agreement according to which the rights to the house belong only to me. After the death of her husband, his children from his first wife announced that they were going to go to court to invalidate the contract, since, in their opinion, he had substantially violated their rights, and, moreover, had ceased to be effective due to the death of their father. Can they challenge my rights to the house in court?

Under the agreement, you acquired the ownership right from the moment of signing and notarial registration of the document. This is a fait accompli that has no retroactive effect. Children can count on a share in the rest of the property, which is not covered by the prenuptial agreement.

In the event that one of the parties to the transaction has died and restitution is impossible, since there is no one to return the transaction received under the transaction, the courts consider it possible to return the performance due under the invalid transaction to the hereditary mass of the citizen. In other words, everything received under an invalid transaction and due to be returned in the order of restitution to the deceased citizen is returned in connection with his death to the composition of the hereditary mass and is inherited by his heirs.

So, applying the consequences of the invalidity of the transaction, the property subject to return in the order of restitution (an apartment transferred at one time to third parties under an invalid donation agreement) was recognized as a hereditary mass in connection with the death of one of the parties to an invalid transaction (Appeal of the Moscow City Court dated September 28, 2012 in the case N 11-19340).

In another case, recognizing the purchase and sale agreement as invalid, he obliged each of the parties to return to the other party everything received under the invalid transaction, and in connection with the death of one of the parties, to its heirs (Appeal of the Voronezh Regional Court dated 05.02.2013 N 33-506).

Similarly, in the case of the claim of the insurance company against the bank, the insurance contract concluded with the deceased was invalidated. Under this agreement, the bank that issued the loan to the deceased citizen acted as the beneficiary. The citizen, concluding the contract, reported false information about himself about the absence of diseases and health problems, hid the fact of epilepsy and being in a day hospital in a psychiatric hospital, which was essential to determine the probability of an insured event and the amount of possible losses from its occurrence. These circumstances served as the basis for challenging the insurance contract as an invalid transaction made under the influence of deception (clause 1 of article 179 of the Civil Code of the Russian Federation).

He recognized the insurance contract as invalid on this basis, while obliging the insurance company to return all insurance premiums paid by the policyholder to the heir to the policyholder in order to return the parties to their original position. In the situation under consideration, it was not possible to oblige the parties to an invalid transaction to return to each other everything received under it in order to bring them to their original position due to the death of the policyholder. However, the presence of an heir makes it possible to recover from the insurance company insurance payments as received by it under an invalid transaction in favor of the heir (Determination of the Moscow City Court of 04.10.2011 in case N 33-31761).

And arbitration there

The position on the right of heirs to challenge transactions made by the testator and not disputed by him himself during his lifetime received support in the practice of arbitration courts. The most indicative in this regard is the case, which was recently referred for review to the Presidium of the Supreme Arbitration Court of the Russian Federation regarding the contestation by a citizen of the transactions of her deceased spouse regarding the disposal of shares in an economic society.

One citizen created a company with an authorized capital of 10 thousand rubles, then another citizen was admitted to the membership, increasing the authorized capital of the company due to the contribution of a new participant by 10 thousand rubles. After that, he left the list of participants, received the actual value of his share, which, by the decision of the participant who remained in the company, was redistributed to him.

The participant who left the company was married at the time of the above transactions, subsequently his spouse died. Subsequently, the heirs of the deceased spouse filed a claim with the Court for the recognition of the transaction on the withdrawal from the membership of the citizen who was the spouse of their testator, invalid, indicating in support of their claims that the consent of the deceased spouse had not been obtained.

The panel of judges of the Supreme Arbitration Court of the Russian Federation, referring the case to the Presidium of the Supreme Arbitration Court of the Russian Federation at the request of the heiress, noted the following. By virtue of paragraph 1 of Art. 1176 of the Civil Code of the Russian Federation, Art. 34 of the Family Code of the Russian Federation, clause 8 of Art. 21 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies", the inheritance of the deceased spouse includes the corresponding part of the share in the limited liability company belonging to the other spouse.

From the rule on universal legal succession in inheritance, it follows that the heir has the same rights as the testator had, with the exception of rights inextricably linked with the person of the testator (part 2 of article 1112 of the Civil Code of the Russian Federation), and can defend violated rights. Therefore, the heir of the deceased spouse has the right to challenge transactions that could be challenged by the testator, including on the basis provided for in paragraph 2 of Art. 35 RF IC.

To the specified rule of law, a transaction made by one of the spouses to dispose of the common property of the spouses may be recognized by the court as invalid due to the lack of consent of the other spouse only at his request and only in cases where it is proved that the other party to the transaction knew or knowingly should have known about the disagreement of the other spouse to the conclusion of this transaction.

The adoption by the spouse of a decision on the introduction of a new participant into the membership of the company with an additional contribution to the authorized capital of the company may be considered as a transaction contrary to paragraph 2 of Art. 35 of the RF IC, since such an action is essentially a disposition of the spouses' common property, entailing a decrease in the size of the spouse's participation in society.

The spouse's withdrawal from the company with the subsequent distribution of the transferred share to the company to another participant (or a third party) is also the disposal of the spouses' common property and can be considered as a transaction contrary to paragraph 2 of Art. 35 RF IC. Such transactions may be invalidated at the suit of the other spouse or his heir, if there is evidence that the participant acquiring the share knew or should have known about the disagreement of the other spouse to the transaction.

The spouse's heir in such cases on the basis of paragraph 2 of Art. 167 of the Civil Code of the Russian Federation has the right to demand the award of a part of the share in the company or the actual value of this part from the participant who acquired the share, in the amount that the deceased spouse could demand when dividing the common property of the spouses (Article 39 of the Russian Federation Code).

If the participant does not have the share transferred to him due to its further alienation (or redistribution of shares in another way), the spouse's heir has the right to demand the restoration of corporate control from the subsequent acquirer of such a share in the corresponding part due to him, if he proves his bad faith, or the recovery of the value of a part of the share from the participant , which made the subsequent transfer of the share.

In addition, as explained by the panel of judges of the Supreme Arbitration Court of the Russian Federation, such a transaction can be challenged on the grounds of its pretense (clause 2 of article 170 of the Civil Code of the Russian Federation). A transaction for the introduction of a citizen into the company and a transaction for the withdrawal of another participant, who was the only participant before the adoption of a new one, can cover up the transaction of alienation of a share in the amount of 100% of the authorized capital of the company to a new participant, that is, they are fake.