David has been living in China with his Chinese wife more than 10 years, after their marriage. The couple runs a business together, owns a house, and has a seven-year-old son. During a recent family trip, they were involved in a serious traffic accident. Although no one was injured, David began to seriously consider two questions:
- If both of us have accidents, who will take care of our child?
- If one of us dies, can the surviving spouse inherit all the property?
In fact, the two questions David is considering are also two important issues in family law: the issue of child custody and the issue of spousal property inheritance. Here, we share the conversation between David and his lawyer to help better understand the relevant laws.
Q: If both parents die, who will get custody of the child?
A: When both parents die and the child is a minor, grandparents on both sides have the qualifications to be guardians. However, who is the most suitable guardian should be viewed from the principle that is most beneficial to the ward. If one party has a better economic foundation and educational ability, or if both parties have similar economic conditions, then it depends on who the child has lived with or had more contact with previously.
Q: If one spouse dies, can the surviving spouse inherit all the family property?
A: No, the deceased spouse’s parents, spouse, and children are all the first-tier heirs and they all have to participate in the distribution of the deceased spouse’s property.
Q: Well, the property is all for the child in the future, no problem. However, do the deceased spouse’s parents also have to participate in the property distribution?
A: Yes, all first-tier heirs can participate in the property distribution equally.
Q: Our current house is under my wife’s name. You told me earlier that even if the house is only in my wife’s name, this house is jointly owned by the spouses, and indeed this house was purchased with contributions from both of us. Since my salary is higher, I actually contributed more to this house. However, you are now telling me that this house cannot be fully obtained by me and the child? Does that mean we can’t continue to live in it?
A: First, according to the law, the house purchased during the marriage is joint property of the spouses, regardless of whose name it is under;
Second, the house purchased during the marriage is joint property of the spouses, regardless of who contributed more, even if the other party has no income at all, it is still joint property of the spouses.( You may check our previous post for more info: Personal Assets or Family Assets, Can You Tell?)
Then, if one party dies, how should the house be handled?
Firstly, the house needs to be divided, that is, 50% of the house is the personal property of the deceased, and this 50% needs to be allocated by all first-tier heirs.
Q: Hmmm, the grandparents probably wouldn’t want to inherit, right? After all, they hope their grandson can live better, right?
A: This is a difficult question to generalize. Moreover, sometimes, even if the grandparents are not interested in the property, their children sometimes do not want their parents to give up any property they can get.
Q: This is really unexpected… Does it mean I can’t continue to live in the house where we have always lived with our child?
A: I have just explained all the legal provisions, that is to say, if there is no will, the inheritance will be conducted according to the legal provisions; but if the spouses leave a will, whether it is the issue of child custody or property inheritance, it will be resolved according to the contents of the will.
Q: It seems it’s time to seriously consider the issue of a will.
A: Yes, the couple should definitely discuss it thoroughly.
You get it now? If you are considering the issue seriously, you may contact us any time.
Relevant provisions in Civil Code of the PRC:
Article 27: …If the parents of a minor have died or are unable to exercise guardianship, the following persons with guardianship capacity shall assume the guardianship in the following order:
(1) Grandparents, maternal grandparents;
(2) Elder brothers, elder sisters;
(3) Other individuals or organizations willing to serve as guardians, but with the consent of the residents’ committee, villagers’ committee, or civil affairs department of the minor’s place of residence.
Article 1133: Natural persons may make a will in accordance with the provisions of this law to dispose of their personal property and may designate an executor of the will.
