When a loved one dies, it is always a mournful event. But if we consider this fact from a legal point of view, then it is accompanied by the appearance, change, and also the termination of certain legal relations of the civil order with the deceased.
Studying the question of whether child support debts are inherited, it is not always possible to answer it unequivocally. It is necessary to take into account different points regarding a specific case.
Does the right to alimony transfer upon receipt of the inheritance
Regarding whether the right to alimony payments passes by inheritance, the legislator gives a definite answer. It is contained in Part 2 of Art. 120 of the IC of the Russian Federation, where it is said that the payment collected in the court order ceases with the death of the person who is obliged to pay child support.
Another article, 383, contained in the Civil Code of the Russian Federation, has a similar content. According to it, the transfer to another person of rights inextricably linked to the person, for example, claims for alimony or for compensation for harm caused to life or health, is not allowed.
As you can see, the heirs are not obliged to continue to pay child support after the death of the testator. However, there are exceptions to this rule.
What is included in the legacy
For a more detailed study of the issue of whether the alimony debts and the right to alimony are inherited, it is worthwhile to find out what property is included in the estate. This is stated in Art. 1112 of the Civil Code of the Russian Federation. According to the article, the property and belongings of the deceased, which belonged to him during his lifetime, as well as the rights and obligations of the material plan, are transferred to the inheritance. As you can see, the right to alimony as well as the obligation to compensate for the damage are not included in the estate.
In Art. 128 of the Civil Code of the Russian Federation, it is said that in addition to things, the inheritance includes:
- intellectual property products;
- cash and non-cash money;
- securities;
- property rights;
- intangible goods;
- property obligations subject to joint execution by all the heirs, but within the value of property transferred by inheritance.
Are inheritance payments paid?
To understand the question of whether child support debts are inherited, you need to figure out where the payments are made. The RF IC says that alimony is paid from different incomes of the alimony payer. There is also the RF PP dated July 18, 1996, which contains a clear list of the types of salaries and other income from which alimony is paid for the maintenance of children under the age of majority. This list includes:
- salary, including accruals and bonuses;
- income from commercial activities;
- income from operations with the Central Bank;
- income from lawyer, notarial and other activities permitted by law;
- income from the exercise of the rights of the author;
- social allowances;
- pension payments;
- scholarships.
Other accrued income is not taken into account. In accordance with the decree, inheritance is not included in this list. At the same time, there is a provision according to which alimony is paid on income received under contracts in accordance with the law. Based on it, the plaintiff is trying to get funds from the inheritance. And in judicial practice there are cases when such requirements were satisfied by the court.
The defendant in such a situation must prove that the inheritance is not income, and therefore he should not pay child support from it. Usually, a will or court order is sufficient for this.Thus, in general cases, alimony from the inheritance is not paid, since the inheritance is not income. However, in cases where the property was sold immediately after receiving the inheritance, becoming income, alimony should be paid.
Alimony recovery procedure
Alimony through the court can be obtained in one of two ways:
- through the issuance of a court order;
- in order of action.
If there is no dispute about whether the inherited debts are transferred to the heir, then it is better to apply for a court order. This option does not imply a hearing by the parties. The order is issued within 5 days after receipt of the application. However, if the defendant filed an objection, the order is subject to cancellation, and the recipient of the alimony will have to prepare a statement of claim to the court.
Despite the fact that in lawsuit proceedings it will take more time and effort, this option also has its advantages. So, the plaintiff will have the opportunity to recover from the alimony payer not only alimony payments, but also compensation for certain expenses.
If the issue of transferring the right to the alimony itself is in some cases controversial, then the debt on alimony after the death of the debtor is subject to the obligatory payment by the heirs.
Debt calculation
About how the calculation of debt for maintenance payments is provided in art. 113 SK RF, as well as in Art. 102 of the Law on Enforcement Proceedings. In accordance with these standards, 3 methods have been developed to help you know how much child support debt will have to be returned to the heirs. The amount is calculated:
- Based on the subsistence minimum established in a particular constituent entity of the federation, the amount is considered, depending on the circumstances, and is a multiple of the current minimum (calculations are carried out by the bailiff).
- On the basis of the average salary in the country - it is applied if the debtor has no earnings, documented.
- Taking into account the amount of income of the alimony payer - it is used if the debtor has income confirmed by relevant documents.
If there is income, the calculation will be as follows:
- 1/4 earnings in the presence of one child;
- 1/3 earnings in the presence of two children;
- 0.5 earnings in the presence of three or more children.
The statement of claim is filed at the place of residence or at the address of the defendant. The state fee in this case, the plaintiff will not have to pay. In addition to the claim, an additional package of documents must be submitted, which necessarily includes a document confirming the birth of the child. A certificate of family composition is also presented, which should indicate that the child lives with the plaintiff and is dependent on him. In addition, if the parents were married or divorced, then it is necessary to provide the court with a certificate of both marriage and its dissolution.
Statement of claim
A lawsuit is the main document on the basis of which a trial is initiated in court. It should be drawn up in the prescribed manner and contain the necessary information. Otherwise, the case will not be considered, and the application will be returned to the applicant. In addition, the document is submitted in several copies:
- for the court;
- for the plaintiff (where appropriate note is made);
- for the defendant.
It should contain the following data:
- name of court;
- Full name of the plaintiff and defendant, as well as the addresses and contact details of the parties;
- information on the relationship (marriage and termination) of the parents, as well as on the assistance of a separately living parent or the absence thereof;
- references to legislative acts;
- claim.
Features of the dispute in court
If the answer to the question of whether the heirs should pay the alimony debt is beyond doubt, then the situation is different in relation to the presence of the debt itself. The legislator assigns the main role of proving the absence of it to the owner of the property, who inherited the debt for alimony.At the same time, the payee only needs to present facts that indicate that the debt exists.
Therefore, starting a similar process, you should study in detail information about how child support is inherited, armed with legal sources. Then both the one and the other side will significantly increase the chances of winning the case within the walls of the court.
Conclusion
If the heir or the recipient of the alimony wonders whether the debts on alimony, which were formed before the death of the testator, are inherited, he already understands the answer: they are transferred. This obligation is like a loan. Therefore, it is not forgiven and must be paid from property received by inheritance. This obligation is supported by the definition of the Armed Forces of the Russian Federation No. 81-KG13-14.