International Family Law regarding Divorce, 1980 Hague Child Abduction Cases, and Inheritance
Legal Profession Corporation CastGlobal Kawaguchi Office
303 Second Masaki Building, 2-4-5 Namiki, Kawaguchi City Saitama Prefecture, 332-0034, Greater Tokyo Area Half an hour train ride from Central Tokyo
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Right of Residence for the Surviving Spouse
Two methods for the wife to continue to live in the residence
There are two methods for the wife to continue to live in the residence.
1 Inherit the apartment house
2 Obtain the right of residence for the surviving spouse to reside in the residence while the spouse is alive or for a certain period of time
It is required to register the right of residence for the surviving spouse in the legal bureau.
Previously, in order for the wife to continue to live in the residenxce, the only method was to inherit the residence. As long as other heirs agree that the wife inherits the residence, the wife will be able to inherit the residence.
However, if the other heirs do not agree, it is difficult for the wife to inherit the residence.
The wife’s statutory share of inheritance is a half of the decedent’s property.
If the value of the residence exceeds a half of the value of the decedent’s entire property, the possibility that the other heirs do not agree on the wife’s inheritance of the residence may become higher.
Right of Residence for the Surviving Spouse
Under the amended civil code, the right of residence for the surviving spouse was newly prescribed if a certain conditions are satisfied (Civil Code Art. 1028).
In the case where a surviving spouse obtains this right in the division of inherited property, he or she will be able to reside in the residence while he or she is alive or for a certain period of time which is agreed among the heirs. In order to obtain this right, certain conditions need to be satisfied.
The merit for the surviving spouse to obtain this right in the division of property is that in general, the value of the right of residence is regarded as lower than the value of the ownership of the real estate.
Even though the value of the ownership of the residence is high and the value exceeds half of the value of the entire property, the surviving spouse may be able to obtain the right of residence and some deposits in the bank.
This means that the surviving spouse can continue to live in the residence while he or she can receive a portion of the decedent’s bank deposits.
Procedure
The right of residence for the surviving spouse can be agreed in the conference on the division of inherited property. The participants include all heirs of the deceased. They try to reach an agreement about division of the deceased’s assets.
If all the heirs cannot reach an agreement, the family court makes a decision about the right of residence for the surviving spouse in the adjudication proceedings.
The right of residence for the surviving spouse can be included as a testamentary gift to a surviving spouse as well.
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Strategies for
International Divorce
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Hague Convention
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Attorney at law
Makiko Mizuuchi
Legal Profession Corporation CastGlobal Kawaguchi Office
303 Second Masaki Building, 2-4-5 Namiki, Kawaguchi City Saitama Prefecture, 332-0034, Greater Tokyo Area Half an hour train ride from Central Tokyo
Tel 81＋(0)48－271－5085
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