How is the estate divided during divorce and how is the inheritance divided in divorce?

If one of the spouses inherits an estate and the decedent leaves a will that clearly states that it belongs to only one of the spouses, then the estate belongs to one of the spouses. When a husband and wife divorce, it cannot be divided as joint property.

If, at the time of divorce, one of the spouses is legally entitled to inherit the inheritance as the legal heir, there is no actual division between the heirs, and the estate is not actually divided, it cannot be regarded as the joint property of the husband and wife because the estate has not been actually divided. It can only be divided after the actual division can it become the joint property of the husband and wife, and the division can be carried out.

Legal basis] Article 15 of the Judicial Interpretation (III) of the Marriage Law clearly stipulates that during the existence of the marital relationship, if one of the husband and wife as the heirs can inherit the inheritance in accordance with the law, but the inheritance has not been actually divided between the heirs, and the other party requests division when suing for divorce, the people's court shall inform the parties to file a separate lawsuit after the actual division of the inheritance between the heirs.

Legal analysis: The distribution of the estate at the time of divorce is as follows: 1. If the inheritance is obtained before marriage or inherited after marriage, and it is clearly stated that it is inherited by one party, it is personal property and does not need to be distributed; 2. If the inheritance is inherited after marriage and there is no indication that it is inherited by one person, it belongs to the joint property and is distributed equally.

Legal basis: Article 1076 of the Civil Code of the People's Republic of China Where a husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority. The divorce agreement shall clearly state the parties' expression of intent to divorce voluntarily and the consensus on matters such as child support, property, and debt handling.

Article 1079:Where one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly initiate divorce proceedings in the people's court. People's courts hearing divorce cases shall conduct mediation; If the relationship has indeed broken down and mediation fails, the divorce shall be granted. In any of the following circumstances, if mediation fails, a divorce shall be granted:

1) bigamy or cohabitation with another person; (2) Committing domestic violence or abusing or abandoning family members; (3) Having gambling, drug abuse, or other vices that have been repeatedly taught; (4) They have been separated for two years due to emotional discord; (5) Other circumstances that lead to the breakdown of the relationship between husband and wife. Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted. Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted.

Article 1085:After divorce, where children are directly raised by one party, the other party shall bear part or all of the child support. The amount of the cost to be borne and the length of the period shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment. The agreement or judgment provided for in the preceding paragraph does not prevent the child from making a reasonable demand to either parent in excess of the amount originally set forth in the agreement or judgment when necessary.

Article 1087:In the event of divorce, the joint property of the husband and wife shall be disposed of by mutual agreement; If an agreement is not reached, the people's court is to make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party. The rights and interests enjoyed by husbands or wives in the contracting and management of family land shall be protected in accordance with law.

During the divorce period, if the estate is clearly stated to be owned by one party and belongs to one party's personal property, it is not necessary to divide it. If it is not clearly stated that it is owned by one party, it is the joint property of the husband and wife, and the agreement takes precedence, and if the negotiation fails, the judgment shall be made in accordance with the principle of taking care of the children, the wife and the innocent party.

1. What to do with the divorce dowry after one year of marriage.

If the dowry is obtained before the marriage is registered, it belongs to the woman's personal property and belongs to the woman; If the dowry is obtained after the marriage registration and there is no special agreement, it is the joint property of the husband and wife. The method of division of the joint property of the husband and wife is: the agreement takes precedence, and if the negotiation fails, the court will file a lawsuit, and the court will make a judgment in accordance with the principle of taking care of the children, the woman and the innocent party.

2. How to divide the property of the innocent party.

The innocent party may divide the joint property of the husband and wife by agreement with the other party, and if the agreement of the husband and wife fails, the issue of property division can be submitted to the court for judgment. The people's court will make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the innocent party. The personal property of one of the spouses shall not be divided in accordance with the law at the time of divorce and shall remain owned by one of the spouses.

Article 1062 of the Civil Code.

The following property acquired by the husband and wife during the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife:

1) Wages, bonuses, and remuneration for labor services;

2) Income from production, operation and investment;

3) income from intellectual property rights;

4) Inherited or donated property, except as provided for in item 3 of Article 1063 of this Law;

5) Other property that shall be jointly owned.

Husband and wife have equal rights to dispose of joint property.

Article 1063.

The following property is the personal property of one of the spouses:

1) the pre-marital property of one of the parties;

2) Compensation or compensation received by one party for personal injury;

3) Property that is determined in a will or gift contract to belong to only one party;

4) Large-liquid daily necessities for the exclusive use of one side;

5) Other property that shall belong to one side.

If the inheritance is based on the personal inheritance specified by the will, the inheritance belongs to the personal property acquired by the heir after marriage, and the property does not participate in the division of joint property after marriage when divorced.

Where the spouse requests the division of the joint property during the period of the marriage relationship, the people's court shall not support it, except for the following main reasons, and shall not harm the interests of the creditor: (1) one party has hidden, transferred, sold, destroyed, or defrauded the joint property of the husband and wife, or forged the joint debts of the husband and wife. (2) The person with a statutory obligation of support must accept a critical illness** and the other party does not agree to pay the relevant medical expenses.

During the marriage, the parties use the joint property of the husband and wife to purchase a house in the name of one of the parents. The property rights are registered in the name of one of the parents, and the other parent claims the division of the house according to the joint property of the husband and wife. The court did not support it.

The capital contribution at the time of purchase of the house can be considered a claim.

Article 1087 of the Civil Code In the event of divorce, the joint property of the husband and wife shall be disposed of by agreement between the parties; If an agreement is not reached, the people's court is to make a judgment based on the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman, and the innocent party. The rights and interests enjoyed by husbands or wives in the contracting and operation of family land shall be protected in accordance with law. Article 1088:Where one of the spouses bears more obligations due to raising children, taking care of the elderly, assisting the other party in work, and so forth, they have the right to request compensation from the other party at the time of divorce, and the other party shall give compensation.

The specific measures shall be agreed upon by both parties; If the agreement is not reached, the people's court shall make a judgment.