04.2021 Life Guide
Will divorce affect children's inheritance rights?
Far eastern New Century Corporation / fan Peiqi
With the change of concept and the improvement of self-consciousness, the divorce rate of modern people is still high, which also leads to the problem of children's inheritance. This issue will show you how the inheritance rights of children will be affected after divorce?
Case study:
After Ruifan married Zhenzhen, he had a son, Xiaoming. Because of Ruifan's affair, the relationship between the husband and wife broke down. The two sides decided to divorce by agreement, and agreed that Xiaoming's mother Zhenzhen would exercise custody, and the mother and son would live together. Later, Ruifan formed a new family and had a son. But soon, Ruifan died of illness. Can Xiao Ming inherit Ruifan's legacy? And if Zhenzhen and Ruifan divorce and remarry to Daxiong, and Daxiong adopts Xiaoming as his adopted son, after Ruifan's death, does Xiaoming have the right to inherit Ruifan's estate?
explain:
1、 The children's right of inheritance shall not be affected by the divorce of their parents
Article 1138 of the civil law stipulates that "except for the spouse, the heir to the estate shall be determined in the following order: 1. Lineal blood relatives. 2、 Parents. 3、 Brothers and sisters. 4、 Grandparents. It can be seen that both the spouse and the lineal blood relatives are the first legal heirs. The so-called "lineal blood relatives" include: (1) natural blood relatives: children and grandchildren who are related by blood; (2) legal blood relatives: adopted children and grandchildren who are not related by blood but have been adopted by law According to Article 1139 of the civil law, the next of kin shall take precedence over the next of kin. Therefore, at the beginning of inheritance, the lineal blood relatives who have natural and legal blood relationship with the decedent, that is, they obtain the right of inheritance according to law, will not be affected by the existence or extinction of the marriage relationship between the decedent and his spouse. In other words, if the decedent is one of the parents, even if the parents divorce, the right of inheritance of his children will not be affected.
2、 In principle, adopted children shall not inherit the legacy of their natural parents
Article 1077 (2) of the civil law stipulates that "the rights and obligations between the adopted child and the natural parents and their relatives shall cease during the existence of the adoptive relationship. However, when one of the husband and wife adopts the other's children, the rights and obligations of the other and their children shall not be affected by the adoption. Therefore, during the duration of the adoptive relationship, the rights and obligations between the adoptive child and the natural parents cease in principle, including the right of inheritance, that is, both the adoptive child and the natural parents lose the right of inheritance. However, if one of the husband and wife adopts the other's children, the relationship between the other and their children is still direct blood relatives, the rights and obligations between them will not be affected by the adoption.
Conclusion
In this case, after the divorce of Ruifan and Zhenzhen, even if Xiaoming's guardianship is exercised by Zhenzhen, or Ruifan marries another person to have a son, it will not affect Xiaoming's inheritance right to his biological father Ruifan. Therefore, according to Article 1138 of the civil law, the spouses of Xiaoming and Ruifan remarried, and the son of Ruifan remarried, are both the first legal heirs of Ruifan's estate In the case of succession, Ruifan's estate shall be inherited equally by the three heirs (article 1144 of the civil law).
If Xiaoming's biological mother Zhenzhen remarries to Daxiong after divorce, and Daxiong adopts Xiaoming as his adopted son before Ruifan's death, according to Article 1077 (2) of the civil law, the rights and obligations between Xiaoming and his biological mother Zhenzhen will not be affected by Daxiong's adoption of Xiaoming, but the rights and obligations between Xiaoming and his biological father Ruifan will cease during the existence of the adoptive relationship between Daxiong and Xiaoming As a result, Xiao Ming lost his right to inherit his father Ruifan's estate.
Note: Item 1 of article 1077 of the civil law stipulates that "unless otherwise stipulated by law, the relationship between adopted children and their adoptive parents and their relatives shall be the same as that between legitimate children. Item 4 of the same article stipulates: "if an adopted child has a lineal blood relative at the time of approval of adoption, the effect of adoption shall only extend to the minor and unmarried lineal blood relative. However, this restriction shall not apply to the consent of an adult or married lineal blood relative prior to the adoption. 」
Case study:
After Ruifan married Zhenzhen, he had a son, Xiaoming. Because of Ruifan's affair, the relationship between the husband and wife broke down. The two sides decided to divorce by agreement, and agreed that Xiaoming's mother Zhenzhen would exercise custody, and the mother and son would live together. Later, Ruifan formed a new family and had a son. But soon, Ruifan died of illness. Can Xiao Ming inherit Ruifan's legacy? And if Zhenzhen and Ruifan divorce and remarry to Daxiong, and Daxiong adopts Xiaoming as his adopted son, after Ruifan's death, does Xiaoming have the right to inherit Ruifan's estate?
explain:
1、 The children's right of inheritance shall not be affected by the divorce of their parents
Article 1138 of the civil law stipulates that "except for the spouse, the heir to the estate shall be determined in the following order: 1. Lineal blood relatives. 2、 Parents. 3、 Brothers and sisters. 4、 Grandparents. It can be seen that both the spouse and the lineal blood relatives are the first legal heirs. The so-called "lineal blood relatives" include: (1) natural blood relatives: children and grandchildren who are related by blood; (2) legal blood relatives: adopted children and grandchildren who are not related by blood but have been adopted by law According to Article 1139 of the civil law, the next of kin shall take precedence over the next of kin. Therefore, at the beginning of inheritance, the lineal blood relatives who have natural and legal blood relationship with the decedent, that is, they obtain the right of inheritance according to law, will not be affected by the existence or extinction of the marriage relationship between the decedent and his spouse. In other words, if the decedent is one of the parents, even if the parents divorce, the right of inheritance of his children will not be affected.
2、 In principle, adopted children shall not inherit the legacy of their natural parents
Article 1077 (2) of the civil law stipulates that "the rights and obligations between the adopted child and the natural parents and their relatives shall cease during the existence of the adoptive relationship. However, when one of the husband and wife adopts the other's children, the rights and obligations of the other and their children shall not be affected by the adoption. Therefore, during the duration of the adoptive relationship, the rights and obligations between the adoptive child and the natural parents cease in principle, including the right of inheritance, that is, both the adoptive child and the natural parents lose the right of inheritance. However, if one of the husband and wife adopts the other's children, the relationship between the other and their children is still direct blood relatives, the rights and obligations between them will not be affected by the adoption.
Conclusion
In this case, after the divorce of Ruifan and Zhenzhen, even if Xiaoming's guardianship is exercised by Zhenzhen, or Ruifan marries another person to have a son, it will not affect Xiaoming's inheritance right to his biological father Ruifan. Therefore, according to Article 1138 of the civil law, the spouses of Xiaoming and Ruifan remarried, and the son of Ruifan remarried, are both the first legal heirs of Ruifan's estate In the case of succession, Ruifan's estate shall be inherited equally by the three heirs (article 1144 of the civil law).
If Xiaoming's biological mother Zhenzhen remarries to Daxiong after divorce, and Daxiong adopts Xiaoming as his adopted son before Ruifan's death, according to Article 1077 (2) of the civil law, the rights and obligations between Xiaoming and his biological mother Zhenzhen will not be affected by Daxiong's adoption of Xiaoming, but the rights and obligations between Xiaoming and his biological father Ruifan will cease during the existence of the adoptive relationship between Daxiong and Xiaoming As a result, Xiao Ming lost his right to inherit his father Ruifan's estate.
Note: Item 1 of article 1077 of the civil law stipulates that "unless otherwise stipulated by law, the relationship between adopted children and their adoptive parents and their relatives shall be the same as that between legitimate children. Item 4 of the same article stipulates: "if an adopted child has a lineal blood relative at the time of approval of adoption, the effect of adoption shall only extend to the minor and unmarried lineal blood relative. However, this restriction shall not apply to the consent of an adult or married lineal blood relative prior to the adoption. 」
