Marital Asset Preservation

Eight common marriage wealth protection cases are shared at the moment, and combined with laws and principles, they explain how to use different tools to preserve assets, especially through large insurance policies, to achieve the purpose of wealth protection.

Edited at 2023-04-28 16:49:05

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Marital Asset Preservation

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Marital Wealth Protection

Premarital Property Protection and Insurance Tools

To protect pre-marital property, we must first clarify: Which property is the separate property of the couple? What property is marital property? What personal property will become community property after marriage? In this regard, the Civil Code has clear provisions. Next, let’s take a look at the relevant legal provisions:

Article 1,062 The following properties acquired by husband and wife during the marriage relationship are the common property of husband and wife and shall be owned jointly by husband and wife: (1) wages, bonuses, and remuneration for labor services; (2) income from production, business, and investment ; (3) Income from intellectual property rights; (4) Property inherited or donated, except as provided for in Paragraph 3 of Article 1063 of this Law; (5) Other property that should be jointly owned. Husband and wife have equal rights to handle joint property.

Article 1,063 The following properties are the personal property of one spouse: (1) One spouse’s pre-marital property; (2) Compensation or compensation received by one spouse due to personal injury; (3) The property specified in the will or gift contract to belong only to one spouse. The property of one party; (4) daily necessities used exclusively by one party; (5) other property that should belong to one party.

In addition, the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China" (hereinafter referred to as the "Judicial Interpretation (I) of the Marriage and Family Section of the Civil Code") stipulates: Article 26 The income generated from the personal property of one spouse after marriage, except for interest and natural appreciation, shall be recognized as joint property of the spouses. Article 78 If one spouse signs a real estate sales contract before marriage, uses personal property to pay the down payment and takes a bank loan, and after marriage uses the joint property of the couple to repay the loan, and the real estate is registered in the name of the party who paid the down payment, the real estate will be owned by both parties upon divorce. Protocol processing. If an agreement cannot be reached in accordance with the provisions of the preceding paragraph, the people's court may rule that the real estate belongs to the party who registered it, and the unpaid loan shall be the personal debt of the party who registered the real estate. The amount jointly repaid by both parties after marriage and the corresponding increase in property value shall be compensated by the party registering the real estate to the other party upon divorce in accordance with the principles stipulated in paragraph 1 of Article 1087 of the Civil Code. From the above legal provisions, we can conclude that the personal property of husband and wife includes: (1) pre-marital property; (2) medical expenses; (3) living allowance for the disabled; (4) personal daily necessities; (5) personal belongings before marriage The interest of property after marriage; (6) The natural appreciation of personal property before marriage after marriage; (7) Property designated for donation; (8) Property designated for inheritance. Here we need to explain what yield is. Interest refers to the additional income generated by the original thing, which is divided into natural interest and legal interest. Natural yield is the income obtained based on the natural properties of things or the changing laws of things, such as eggs laid by hens, cubs laid by livestock, fruits grown on fruit trees, etc. Statutory interest refers to the income that the owner obtains from transferring the right to use the property within a certain period of time due to a subordination relationship established by law. For example: interest from deposits, rent from renting out houses or items, etc. Yield, appreciation, and investment income are different. Through Figure 1-1, we can understand these concepts more clearly:

1. Pre-marital property agreement: Equity takes into account the rights and interests of shareholders and is personal property. As the chairman of the company, he holds a large number of shares in the company. After he gets married, the shareholder dividends generated by the company and the increase in equity value due to the company's good operating conditions are investment income and belong to the joint property of the husband and wife. Boss Wang did not make reasonable planning for this part of the property before the marriage, so once the marriage changes, this part of the property will be divided. This will not only cause him to suffer huge property losses, but may also affect the development of the entire company.

2. A large number of stocks were purchased before marriage. If these stocks increase in value after marriage, the increased value will be recognized as joint property of the couple and will be divided upon divorce; if the stock price drops, the loss will be borne by Boss Wang alone.

1. In order to prevent shareholder dividends and equity appreciation from being divided during divorce, Boss Wang can sign a prenuptial property agreement with Ms. Lin before marriage, clearly stipulating that shareholder dividends and equity appreciation belong to Boss Wang’s personal property.

3. Before getting married, Boss Wang purchased multiple properties in installments and paid the down payment. This approach is also risky. First, although according to the provisions of Article 78 of the Judicial Interpretation (1) of the Marriage and Family Section of the Civil Code, it is highly likely that the property purchased with a pre-marital loan will be distributed to Boss Wang at the time of division, but if the wife does not have any property in her name at the time of divorce, , and may also be divided among the wives. Secondly, Boss Wang purchased the house with a loan before marriage. If he cannot prove that he repaid the loan entirely with his personal property before marriage, then the loan repaid after marriage is likely to be deemed to have been repaid with the joint property of the couple. Part of the property and the corresponding increase in value also need to be divided.

1. There is a large amount of cash before marriage, and this part of the property can easily be confused with the cash after marriage. Therefore, he needs to make special planning for cash assets before marriage. For this reason, Boss Wang can configure a life annuity insurance for himself before marriage. Among them, the policy holder is Boss Wang, the insured is Boss Wang, and the death beneficiary is Boss Wang’s parents. 2. You can apply for a new bank card separately before marriage, and store enough funds in the card to pay the premium. After marriage, you will no longer deposit cash into the card. This way, you can not only pay the premium in installments after marriage, but also Prove that all premiums come from personal savings before marriage.

If the living annuity received by Boss Wang exceeds the total premium paid, is the excess part the joint property of the couple? There is a view that this part will be presumed to be marital property. However, in practice, the excess premium will generally not be divided in divorce. Even if it really needs to be divided, Boss Wang's pre-marital property is still protected to the maximum extent.

Marriage property protection for stay-at-home wives

Most stay-at-home wives have the following characteristics: they lack the ability to generate income, the family property is in the hands of their husbands, and they do not understand the basic situation of the family property. Because of this, they usually face two risks: First, the husband who is responsible for creating wealth suddenly dies or the company goes bankrupt, causing the family's life to lose security; Second, couples divorce, resulting in property damage and even loss of financial resources.

First, let’s take a look at the specific provisions of the law regarding the handling of marital property during divorce. Civil Code 1. Article 209 The establishment, change, transfer and elimination of real property rights shall be effective if registered in accordance with the law; without registration, they shall not be effective, except as otherwise provided by law. 2. Article 1090: During divorce, if one party is in difficulty, the other party who can afford it should provide appropriate assistance. The specific measures shall be agreed upon by both parties; if agreement cannot be reached, the People's Court shall make a decision. 3. Article 1092. If one spouse hides, transfers, sells, destroys, or squanders the joint property of the spouses, or forges joint debts of the spouses in an attempt to appropriate the property of the other spouse, when the joint property of the spouses is divided upon divorce, the spouse may receive less To divide or not to divide. After divorce, if the other party discovers the above-mentioned behavior, he or she may file a lawsuit with the People's Court to request another division of the marital property. "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (hereinafter referred to as the "Judicial Interpretation of the Civil Procedure Law") Article 90: The facts on which the parties rely on their own claims or the basis on which they refute the other party's claims Evidence must be provided to prove the facts, unless otherwise provided by law. Before a judgment is made, if a party fails to provide evidence or the evidence is insufficient to prove its factual claims, the party who bears the burden of proof shall bear the adverse consequences.

Method 1. A full-time housewife can sign a marital property agreement, or arrange a large insurance policy for herself as early as possible during marriage; 2. Try to understand as much as possible the status of family property and keep some of the property in your own hands as much as possible; 3. If the property is in the name of the husband alone, you can negotiate with your husband during the marriage to add your name to the property certificate, or transfer the property to your children in advance; 4. If your husband owns a company, strive to become a small shareholder of the company and have a basic understanding of the company's operating conditions.

Policy structure 1. During the marriage, Ms. Zhao can use the funds she has accumulated or persuade her husband to arrange an annuity life insurance for herself, with herself as the policy holder and the insured, and her children as the death beneficiaries. 2. During the marriage, Ms. Zhao can also configure another annuity insurance plan, in which she is the policy holder and death beneficiary, and her children are the insured.

The Impact of the Divorce Cooling-Off Period

The Civil Code contains specific provisions on the cooling-off period for divorce. Article 1,076 If both spouses wish to divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration authority. The divorce agreement should state the intention of both parties to divorce voluntarily and the consensus on matters such as child support, property and debt settlement. Article 1077 If either party is unwilling to divorce within thirty days from the date the marriage registration authority receives the application for divorce registration, the party may withdraw the application for divorce registration from the marriage registration authority. Within thirty days after the expiration of the time limit specified in the preceding paragraph, both parties shall apply in person to the marriage registration authority for issuance of a divorce certificate; if they fail to apply, the application for divorce registration shall be deemed to have been withdrawn. Article 1078. If the marriage registration agency finds out that both parties are indeed voluntarily divorcing and have reached consensus on matters such as child support, property, and debt settlement, the marriage registration agency will register the marriage and issue a divorce certificate.

If the property increases within 30 days of applying for divorce by agreement, more money may be allocated to the other party. How to deal with this?

Large low current price insurance policies, such as extended whole life, pension annuities, etc. When the policy holder divorces, the joint property to be divided is the cash value of the policy rather than the premium.

The impact of fault liability in divorce

An important change in the Civil Code is the clarification of the principle of punishment for the party at fault within marriage. Article 1,087 When divorcing, the joint property of the husband and wife shall be handled by agreement between the parties; if an agreement cannot be reached, the people's court shall make a judgment based on the specific circumstances of the property and in accordance with the principle of taking into account the rights and interests of the children, the woman and the non-fault party. Article 1091: If one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) Bigamy; (2) Cohabitation with others; (3) Domestic violence; (4) Abuse. , abandoning family members; (5) having other major faults.

When you find that your husband is cheating, you can use the money you have in your hands to buy a large life insurance policy in advance. Ms. Liu herself serves as the policy holder and the insured, and her daughter serves as the death beneficiary. First, the policy is the asset of the policy holder, so the control of the policy is in the hands of Ms. Liu, which prevents the husband from transferring this part of the property or giving it to his lover. Moreover, Ms. Liu’s purchase of life insurance at this time does not constitute a transfer or squandering of property. Second, even if the policy needs to be divided during divorce, only the cash value of the policy, not the premium, will be divided. The cash value of the policy is very low in the first few years. For example, Ms. Liu purchased an insurance policy for 10 million yuan. The cash value of the policy at the time of divorce may be only 1 million yuan. Moreover, Ms. Liu is the non-fault party. According to the latest provisions of the Civil Code to take care of the rights and interests of the non-fault party, the cash value of the policy will be Most of the money will probably be awarded to Ms. Liu, so the husband, who is the at-fault party, may only receive 200,000 yuan in the end. In this way, Ms. Liu has protected her rights and interests to a great extent. Third, life insurance has a leverage function and can maintain and increase value. In addition, when Ms. Liu needs money urgently, she can use policy loans for emergency purposes.

Risks and insurance tools for raising a family

It is not uncommon for "if something happens to one person, the whole family will be affected". This type of family generally has this characteristic: one person in the family (usually the husband) is the main or even the only source of income for the entire family, and is responsible for all high-consumption expenditures of the family. In extreme cases, all the family's wealth, including business property and debts, are controlled by one person, with little knowledge of other family members. If wealth planning is not carried out in advance, such families will face huge risks. For example, if the "backbone" has an accident, loses his job, or the company goes bankrupt, the entire family will be greatly affected, and may even fall into an economic crisis.

Article 100: In cases where the conduct of one party or other reasons may make it difficult to execute a judgment or cause other damage to the party, the people's court may, upon the application of the other party, rule to preserve the property, order the party to perform certain acts, or prohibit the party from doing so. If the party concerned has not made an application, the people's court may also rule to take preservation measures when necessary. When the people's court takes preservation measures, it may order the applicant to provide a guarantee. If the applicant fails to provide a guarantee, the people's court shall rule to reject the application. After the people's court accepts the application, it must make a ruling within 48 hours if the situation is urgent; if it decides to take preservation measures, it must start implementation immediately. Article 102 Preservation shall be limited to the scope of the request or the property related to the case. Article 103 Property preservation shall take the form of sealing, detaining, freezing or other methods prescribed by law. After the people's court preserves property, it shall immediately notify the person whose property is preserved. If the property has been sealed or frozen, it shall not be seized or frozen again.

Option 1: If Mr. Li’s father still meets the insurance conditions, Mr. Li can pay for an annuity insurance for him. Among them, Mr. Li’s father is the policy holder, Mr. Li is the insured, and Mr. Li’s son is the death beneficiary. First, because the policy holder is Mr. Li’s father, and the cash value of the policy belongs to the policy holder, even if Mr. Li is sued, the cash value of the policy will not be frozen, and the assets of the family business and the enterprise can be separated. Second, Mr. Li, as the insured and annuitant, can choose whether to receive the living annuity. If Mr. Li does not need funds in recent years, he can choose not to receive the living annuity and let it compound and increase in value on the corresponding account; if he needs funds, he can withdraw them at any time to meet his financial needs. Third, Mr. Li’s son is the death beneficiary. If Mr. Li dies due to an accident, the insurance company will pay a death insurance benefit to Mr. Li’s son. This death insurance benefit does not belong to Mr. Li’s estate, but his son’s personal property. This fund can well protect the livelihood of his family and the education of his children. You can also purchase whole life, current price policy loans

Parents’ financial support for their children

So why are gifted and inherited property divided in a divorce? According to Articles 1062 and 1063, the following properties are the personal property of one spouse:

1. "It is determined in the will or gift contract that it belongs to only one party", otherwise the "inherited or donated property" is the joint property of the husband and wife. 2. Article 5 of the second part of the "Minutes of the Eighth National Court Civil and Commercial Trial Work Conference (Civil Part)" "On the Trial of Marriage and Family Dispute Cases" stipulates as follows: During the subsistence of the marriage relationship, one of the spouses shall serve as the insured. Insurance proceeds of a personal nature obtained from an accident insurance contract, a health insurance contract, or insurance proceeds obtained by a spouse as a beneficiary under a life insurance contract with death as the condition for payment should be recognized as personal property, unless otherwise agreed upon by both parties. except. During the marriage, the insurance money received by one spouse based on an insurance contract with cash value that requires survival to a certain age should be recognized as joint property of the spouses, unless otherwise agreed upon by both parties.

1. When providing marital wealth support to your daughter, you must sign a gift contract with her and state in the contract that the money is only given to your daughter and has nothing to do with her spouse. After that, let the daughter use the money to buy an annuity insurance, and name herself as the policy holder and the insured. If the daughter has given birth to a third generation, she can designate the third generation as the death beneficiary; if she has no children, she can designate the third generation as the death beneficiary. The parents, Mr. He and his wife, are the death beneficiaries.

Risks and insurance tools of dusk love

Article 1,138 A testator may make an oral will in critical circumstances. An oral will must be witnessed by at least two witnesses. After the critical situation is eliminated, if the testator is able to make a will in writing or in the form of audio and video recordings, the oral will will be invalid. Article 1140 The following persons cannot serve as witnesses of a will: (1) Persons without capacity for civil conduct, persons with limited capacity for civil conduct, and other persons without witness capacity; (2) Heirs and legatees; (3) ) A person who has an interest in the heir or legatee. Article 658 The donor may revoke the donation before the rights to the donated property are transferred. The provisions of the preceding paragraph shall not apply to notarized gift contracts or gift contracts that cannot be revoked in accordance with the law and have the nature of public welfare or moral obligations such as disaster relief, poverty alleviation, and assistance to the disabled.

What are the risks of Mr. Chen's twilight love? 1. There is a misconception that "it is unlucky to make a will or buy insurance" because you did not plan your inheritance in advance when you were still healthy. 2. Because according to the relevant provisions of the Civil Code, an oral will will take effect only if there are more than two valid witnesses. As the heir, Mr. Chen’s son cannot be a witness of the will, and his inheritance needs to be legally inherited. , the remarried wife and the son from the first marriage, who are the first-order heirs, will inherit the inheritance jointly. 3. Most of the donated property cannot be recovered. According to the relevant provisions of the Civil Code, except for donations that have been notarized or have a public welfare or moral obligation nature, under other circumstances, the donor can revoke the gift before the rights to the donated property are transferred. As far as Mr. Chen is concerned, the luxury cars and stocks he gave to his wife and brother have already completed the transfer of property rights at the time of donation and cannot be revoked. Of the two houses he gave to his wife, the one that has not gone through the transfer procedures can be revoked, but the one that has gone through the transfer procedures cannot be revoked. Because the house donation contract is a practical contract, the establishment of the house donation relationship requires the completion of transfer procedures, or the recipient obtains the property certificate according to the donation contract and actually takes possession of and uses the house.

1. To avoid inheritance disputes and achieve directional inheritance of wealth, Mr. Chen can configure himself a life annuity insurance with high cash value. Among them, the policy holder is Mr. Chen, the insured is Mr. Chen, and the beneficiary after death is his son from his previous marriage. ——Avoid inheritance disputes and achieve directional inheritance; effectively control insurance policies and realize wealth appreciation; policy loans solve liquidity crises; receive annuities and have a worry-free retirement. 2. If he wants to provide his remarried wife with a certain amount of material protection and retain a certain amount of control, Mr. Chen can configure an insurance trust for himself. Among them, after Mr. Chen purchased whole life insurance as the policy holder and insured, he signed a trust agreement with the trust company, changed the death beneficiary to the trust company, and named his remarried wife and son from his previous marriage as the trust beneficiaries.

Risks and insurance tools for children born out of wedlock fighting for inheritance

Children born out of wedlock also have legal inheritance rights. Relevant provisions of the Civil Code. Article 1,127 Inheritance shall be inherited in the following order: (1) First order: spouse, children, parents; (2) Second order: brothers, sisters, grandparents, and maternal grandparents. After the inheritance begins, the first-order heir will inherit, and the second-order heir will not inherit; if there is no first-order heir, the second-order heir will inherit. Children referred to in this section include legitimate children, illegitimate children, adopted children and dependent stepchildren. The term “parents” in this article includes biological parents, adoptive parents and step-parents who have a supportive relationship. The term "brothers and sisters" in this article includes brothers and sisters of the same parents, half-brothers or half-fathers, adopted brothers and sisters, and step-brothers and sisters with dependent relationships. In the above case, because Mr. Wu did not make a will during his lifetime, his estate must be inherited in accordance with the legal order after his death. If Mr. Feng can submit sufficient evidence to prove his father-son relationship with Mr. Wu, he will have the right to inherit Mr. Wu's estate.

1. If the legitimate son has reached adulthood, the wife can donate the joint property to the son and let him buy an annuity insurance. Among them, the son is the policyholder, the wife is the insured, and the son is the beneficiary on death - this policy belongs to the son's personal assets, and this policy will not be inherited and divided as his estate. 2. The wife serves as the policy holder, the husband serves as the insured, and the wife serves as the death beneficiary. The wife purchases a large life insurance policy - the insurance money is given to the wife. This part of the property does not belong to the husband's inheritance and has nothing to do with the children born out of wedlock.