When a spouse dies, disputes over property division — between common property and separate property — can easily arise. Many families fall into painful conflicts simply because of a lack of legal knowledge at the beginning. Below are detailed answers and solutions based on the latest regulations in Vietnam.
According to the 2014 Law on Marriage and Family and practical guidelines, common property of husband and wife includes:
Income and profits arising during the marriage period.
Property that husband and wife are given jointly or inherited jointly (if not specifically stipulated).
Assets formed from private assets (if merged into the common block).
Land use rights and other assets that have grounds to be determined as common assets.
If there is no basis to prove the property isprivateof either of them, then that property will be considered joint.
Separate property is property owned separately by either spouse. Types of property that are considered private property by law include:
Assets owned before marriage.
Property is given separately or inherited separately during the marriage (if not included in common property).
Assets are divided separately according to agreement.
Property rights pertain to individuals.
Article 66 of the 2014 Law on Marriage and Family stipulates that when one party dies (or is declared dead by the court): the survivor will manage the common property of the two people, unless the deceased has a will appointing another person or the heirs agree to appoint a manager.
When there is a request to divide the estate, the common property of the husband and wife will be divided in half - unless the husband and wife have previously agreed otherwise on the property regime.
For example, if the couple's common property is 2 billion VND, then when one party dies, the "deceased person's" common share is 1 billion VND to divide the inheritance (the remaining 1 billion is the common property of the living person).
The deceased's personal property will become the inheritance. In case the deceased does not leave a will, the estate (including personal property + common property) will be divided according to law, starting fromfirst line of inheritance: spouse, parents, children.
If there is a legal will, personal assets are divided according to the will of the deceased in the will — but are still subject to restrictions if there are forced heirs (eg spouse, minor children).
This is the "origin" step of many conflicts - because if one party argues that the property is private, they can claim the entire property, while the other party considers it to be common property, so they claim ½ of the common share + inheritance.
In reality, if private property cannot be proven with documents, origin, use function, etc., the Court can determine that property is common property.
You need to prepare evidence: purchase and sale documents, donation contracts, financial statements, delivery records, invoices... to prove the origin of your private assets.
During life, the right to dispose of private property is strictly regulated: only if husband and wife agree (if income is the only source of livelihood), or the other party is authorized, then they can manage and dispose of the other person's private property.
When one party dies, the living person's right of disposition no longer applies to the deceased's personal property — because that property has become an inheritance.
For example, if husband and wife once agreed that if they lost, the other party would have the right to use property
In many cases, the court has asked the plaintiff to amend the petition to "claim the division of common property" if they do not make a clear request.
If there is a will: the person appointed to administer (execute the will) has the right to manage the estate — unless other heirs and survivors agree otherwise.
If there is no will: the surviving party manages the joint assets; The deceased's personal property is handed over to the heirs to manage according to agreement or Court/Family decision.
Clearly identify the disputed property: Classification of common property or separate property, determination of origin and signs of integration.
Collect documents and evidence: certificate of ownership, contract, agreement, financial statement...
Internal or out-of-court mediation: If the parties are willing to sit down, this will help shorten time and costs.
Declare the estate and declare it at the Court/Family: if there is a will or according to the law.
File a lawsuit if an agreement cannot be reached: request the Court to determine assets, divide the estate, and compensate (if there is a violation).
Ask the Court to limit distribution if it seriously affects the lives of survivors(When dividing the inheritance causes great difficulties).
Disputes over common property - private property when one party dies is a topic that easily causes conflicts because it involves great interests, family feelings and overlapping laws. To minimize risks: you should prepare clear evidence in advance while you are alive, should make a will if possible, and if you fall into a dispute, you should quickly find an amicable solution or in-depth legal advice to win the case without unduly damaging family relationships.
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