Matrimonial Property​ Agreement and Succession

 In Russia the statutory matrimonial property regime is the community of property regime (premarital assets, inherited and gifted assets are excluded – art. 36 of the Family Code). The entering into a matriminal property agreement to derogate from the statutory regime was  for the first time introduced by the Family Code 1995. In a matrimonial property agreement spouses  may  make specific provisions in respect of all the property or  parts thereof during  marriage and in case of its dissolution. Matrimonial property agreement is a kind of contract with specific requirements as to its form and its essence.   It cannot restrict legal capacity of spouses, their right for judicial protection; it cannot regulate personal relations between spouses and between parents and children (art. 40, 42 of the Family Code).  There’s no public register for the  matrimonial property agreements. According the the Federal Chamber of notaries, about 100.000 matrimonial property agreements  were concluded in 2018.An agreement is to be validated by a notary, but you may well ask a lawyer to draft it.  Russia is not a party to the Hague Convention  on the Law Applicable to Matrimonial Property Regimes 1978, but spouses may designate an applicable law governing their marital property agreement and/or  financial contribution to each other (art. 161 of the Family Code).

The legal rules governing the devolution of property of a deceased person  are contained  in Chapters 61-65 of the Russian Civil Code. Where a spouse dies intestate the acquisition of property is to be  done according to the degree of  relationship to a deceased person.  There are 8 degrees, the first degree is a surviving spouse, the second – seventh  degrees are relatives of the deceased person, the 8th degree is his/her dependant persons.  

The principle of freedom of testamentary disposition is laid down in art. 1118 of the Russian Civil Code: a person is free to dispose of his/her property according to his/her choice.  But the freedom of testamentary disposition is not complete, as there is a circle of persons (compulsory heirs), entitled to a  reserved portion ((legitieme portie, Pflichtteil,voorbehouden deel, réserve, legitima), namely   minor children, a spouse, parents and dependent persons (art. 1149 of the Russian Civil Code).  In some other countries the freedom of testamentary disposition is complete (f.ex. UK).

It is to be noted that the ways of disposing of property mortis causa have been enhanced from the 1st of June 2019. The new mechanisms such as a testamentary contract and joint will of spouses existing in German law, after heating debates were introduced in the Russian law (art. 1140 prim and para 4 of the art. 1118 of the Russian Civil Code).  Reserved portion is  to be designated  in any case – whether the devolution of property takes place intestate,through a testamentary contract or through a joint will of spouses.

The conflict of law rules are laid down  in art. 1224 of the Civil Code. The applicable law  is the law of the country of  last habitual residence of the deceased person, devolution of property is governed by lex rei sitae.

It should be noted that the Council Regulation 2016/1103 on Matrimonial Property Regimes Having Cross-Border Implications states that the law designated as applicable by this Regulation shall be applied whether or not it is the law of a Member State (art. 20).  In similar vein, EU Regulation 650/2012 on International Successions  provides in its art. 20 for the  application of the law of the State in which the deceased  has  his/her habitual residence at the time of death, even if this is the law of a State that is not a member of the European Union. A single law will govern the whole succession  as  the unity model was chosen  by the Regulation’s drafters in art. 21. 

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