Gift agreement for a husband or wife: how to draw up a gift deed for real estate (apartment, house, land) that is jointly owned, without the consent of one of the spouses, and payment of taxes according to

We give an apartment to my wife: the legal aspect of the gift

In life, different scenarios are possible. It happens that before marriage, future spouses do not own residential square meters, and wish to purchase them jointly.

But it often happens differently. For example, when a spouse has residential real estate at his disposal, and he wants to either partially or completely transfer it into the ownership of his wife. Wanting this, a man probably asks a reasonable question: how should such a transaction be formalized and comply with all legal norms?

The legal norm for donation is regulated by Chapter No. 32 of the Civil Code of the Russian Federation .

Following the text of the Civil Code, from the legal side, donation is an act of transfer by one person to another person, subject to the gratuitous basis of this voluntary act.

Important! When deciding to make a gift to his wife in the form of his own home, the husband must be aware of the fact that he is completely renouncing the right to dispose of the donated apartment in the future.

Ways to re-register an apartment in favor of the wife

There are three main ways to re-register a living space (apartment, house) in the name of a wife:

Sign the deed of gift . In this case, the husband draws up a gift agreement in a standard way, and then has it certified either at a notary office or with a lawyer. Rosreestr carries out the process of registering this transaction and, as a result, the apartment becomes the complete disposal of the wife.
Conclusion of a purchase and sale agreement . This method is most often used by high-ranking government officials who, under no circumstances, want to advertise their level of income. In this case, the spouses must fill out a purchase and sale agreement, endorse it and then register it with Rosreestr.
Registration of renunciation of your share in favor of your wife . This option is ideal if we are talking about housing purchased by a man before marriage. In order for this document to gain legal force, it must be certified by a notary.

Note! Each of the methods listed above has many of its own characteristics and “halftones”. Therefore, a man should think carefully about everything before choosing the appropriate option and making a deal.

Conditions for donating an apartment to your wife

A man who wants to give such a generous gift to his beloved woman must be sure of compliance with a number of necessary legal requirements, namely:

First of all, the donor must have all rights to the object of donation (apartment). Therefore, the presence of a property document is the main condition for the transaction.
Since donation, from a legal point of view, is exactly the same transaction as purchase and sale, the recipient party (spouse) must be aware of what is happening. Therefore, the written consent of the wife is required.

At the same time, when donating housing, a number of important points must be observed:

a man transfers an apartment to his wife without any monetary remuneration on her part - on a free basis;
an apartment transferred into the ownership of a woman at the time of the transaction should not be involved in procedures such as arrest and bail;
Housing where one of the owners is a child cannot be donated.

The gift agreement must reflect in detail all the nuances of the transaction, such as: the price of the apartment, the time of transfer and the obligations of both parties regarding the strict fulfillment of all conditions.

You should know! A necessary stage in the process of donating housing was the stage of officially entering new information about the owner into Rosreestr. After the husband and wife submit the papers to the registration authority, after 10 working days the organization will prepare all the necessary documents about the new owner of the home.

In what cases is a donated apartment subject to division?

During a state divorce, spouses need to take into account not only general provisions related to the division of property , but also the nuances that lie behind each particular situation. There are circumstances in which real estate given to one of the spouses may be subject to division. These include:

impossibility of proving the fact of donation;
increase in the market value of the donated property at the expense of both spouses;
actual donation of real estate to both spouses;
other conditions specified in the marriage contract concluded between the spouses.

Issues regarding the division of property are resolved in court.

Lack of proof of donation

If real estate was gifted to one of the spouses, then during a divorce it remains the personal property of the person to whom it was gifted. But for this, it is necessary that the owner provide evidence that the property was actually donated only to him, and not as a common shared property.

It is necessary that the gift agreement be drawn up correctly. The important point is that the contract does not stipulate that the giving party receives something in return. Otherwise, the document may be recognized not as a gift agreement, but as a purchase and sale agreement. Then the division of property will be carried out between the spouses in equal shares.

Increase in the cost of an apartment

According to Art. 37 of the RF IC, if the market value of real estate received as a gift by one of the spouses increases during their cohabitation (common funds from the family budget are invested in its repair and reconstruction), then in the event of a divorce, the second spouse can claim compensation.

As a result of the fact that funds are allocated from the general family budget, the donee is no longer the sole owner , taking into account the material contribution to increasing the cost of housing by his spouse. Funds can be invested in:

repair work;
redevelopment of living space;
technical improvements, etc.

In order for the spouse of the owner of the gifted home to be able to claim part of the property , the value of which has increased over the years of cohabitation, it is necessary that he provide evidence of the investment of common funds. Such evidence may include:

contracts with contractors for the provision of repair services;
cash receipts, receipts and other payment documents confirming the purchase of building materials, technical equipment, furniture;
assessment of the value of donated housing (before and after repair work);
witness statements.

This is important to know: How to make a deed of gift for a house, apartment or car for your son

Wedding gift for both spouses

Real estate gifted to one of the spouses is his personal property and, in the event of divorce, is not subject to division. However, if both spouses are indicated in the deed of gift , then they equally have the right of ownership in those shares that are specified in the deed of gift.

Division in the presence of a marriage contract

If the spouses did not enter into a prenuptial agreement, then all property acquired during the marriage is jointly acquired and, in the event of divorce, is subject to division into equal shares.

But if a marriage contract has been concluded, then the division of property is regulated by the rules specified in it (according to the regime prescribed in paragraph 1 of Article 42 of the RF IC).

When concluding a marriage contract, the parties have the right to change the rules for the division of not only jointly acquired common shared real estate, but also personal property.

We are going through the registration procedure

First of all, you need to collect the entire package of documents. To formalize the transfer of an apartment from husband to wife, you must have:

document confirming the identity of the owner of the property;
papers confirming ownership;
passports for the apartment: technical and cadastral;
certificate of absence of debt for utility services.

Due to the fact that the spouses are each other's next of kin, by law they carry out the transaction tax-free.

We invite you to visually familiarize yourself with the step-by-step registration of housing in favor of your spouse:

First, the spouses mutually agree on a future real estate transaction. The fact is that such a gift should not come as a surprise, because the recipient acts as an active participant in the gifting process.
The husband and wife fill out a standard gift agreement.

A sample agreement is available

Then the spouses submit a completed application to Rosreestr requesting the transfer of property rights from husband to wife.
After 10 working days, the woman will receive new documents.

Remember! When donating an apartment, neither spouse has to pay any tax.

When filling out the documents accompanying the donation, it is necessary to indicate the following information in the “body” of the contractual agreement:

location of the apartment (address);
if the apartment is located in an apartment building, then indicate the floor;
indicate the number of residential premises (rooms);
indicate the footage of the apartment;
indicate the size of the share in the case when not all housing is donated.

Giving a house to your spouse in 2020

A private house, like the apartment we discussed above, is classified by the legislator in the category of real estate, which are residential premises (Articles 15 and 16 of the Housing Code of the Russian Federation).

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Donation agreement with a notary - cost in 2020

Therefore, donating a house in favor of a spouse is not too different from the similar type of alienation of property given above. At the same time, such a transaction also has several unique nuances that we would like to acquaint our readers with.

Thus, in the very contents of the deed of gift for a house, the donor must describe all the features of the building being donated and its characteristics. It is worth noting the fact that private houses must be transferred to the new owner along with the land plot on which the building was actually erected, as well as various outbuildings, the presence of which must also be recorded in the agreement.

Individual characteristics of houses that should be reflected in the gift deed in 2020 include:

the exact address;
number of storeys of the building;
its actual area;
material of manufacture;
information from technical and cadastral passports (number, etc.);
a list of title documents that would confirm the legality of ownership of the donor’s house and his right to donate this property, etc.

Let us remind you once again that, as in the case of donating an apartment, the transfer of ownership from the donor to the donee (from husband/wife to second spouse) requires mandatory state registration!

We are considering an alternative way of donating housing

There is another opportunity to transfer the apartment into the ownership of the wife - this is a prenuptial agreement. Moreover, what is especially convenient, it can be issued both before marriage and after marriage.

It is reasonable to include the following items in the marriage contract:

in the event of a divorce, the man loses ownership of the apartment, and the housing completely passes to the woman;
the spouse's real estate passes into equal ownership between husband and wife;
ownership rights to the apartment are transferred to the wife in full.

Note! If the spouses have made a choice in favor of joint shared ownership, then in the future the man will be able to renounce his share of housing. Then the spouse will become the only full owner of the apartment.

Features and nuances of donating property that is jointly owned

By donation, the legislator means any transaction for the alienation of certain property or rights from the donor to the donee (according to Article 572 of the Civil Code of the Russian Federation). The main distinguishing feature of this type of agreement is gratuitousness, and if this condition is violated, then, based on the information established in Article 170 of the Civil Code of the Russian Federation, the transaction will be recognized as feigned or imaginary, that is, it will actually be deprived of legal force.

In addition, the subjective composition of gifts is very important. The most suitable example is a transaction between close relatives who completely trust each other. Thus, according to the current legislation of the Russian Federation, the category of close relatives today includes:

Parents;
children;
brothers and sisters who have at least one common parent;
Grandmothers and grandfathers;
grandchildren and granddaughters;
adoptive parents and adopted children.

Also, based on the norms established in Article 14 of the Family Code of the Russian Federation, the law equates spouses with close relatives.

Important : Any of the persons listed above has the legal right to act in civil transactions, being the owner of the subject of the transaction. However, we remind you that in 2020 there is still a ban on donating property on behalf of incapacitated and minor persons (Article 575 of the Civil Code of the Russian Federation).

In most cases, the persons listed in the list own property together with other owners, that is, on the basis of common ownership (1 paragraph 244 of Article 244 of the Civil Code of the Russian Federation). At the same time, common property is divided into joint and shared. The latter presupposes the mandatory determination of the share of each of the owners, and the first exists without determining the shares.

This property regime is, first of all, characteristic of spouses and is formed only after registration of the marriage union with the civil registry office (Articles 34 and 35 of the Family Code of the Russian Federation, as well as Article 256 of the Civil Code of the Russian Federation). however, this regime can also be applied to other relatives.

An example from the lawyers of the website “Legal Aid”

Lyudmila Kim

Family lawyer. Author of the website “Child Support”, guest author of “Legal Aid”.

Parents (father and mother), as well as their children (daughter and son) have a private house in common ownership. According to Article 253 of the Civil Code of the Russian Federation, ownership and use of property that is jointly owned must be carried out jointly by all owners. At the same time, each of the owners can dispose of this property if he has received the consent of the other owners.

Also, it is worth noting that in the joint ownership regime, each participant has the right to independently dispose of the property, but only if otherwise was not established by agreement between the owners.

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The regime of joint ownership is regulated by Article 256 of the Civil Code and the provisions of Article 34 of the Family Code. At the same time, it is important to note that paragraph 2 of Article 35 of the RF IC specifies the so-called presumption of consent of the husband or wife (that is, the second spouse) on all issues related to the disposal of jointly acquired property.

However, for all agreements that are related to real estate, transactions with which, according to current legislation, require mandatory state registration or notarization - obtaining the consent of the second spouse is considered mandatory!

A way to gift a share of housing to your spouse

Many families who have been married for more than one year acquire housing together. But due to personal circumstances and the specific situation, the spouses decide to completely transfer the apartment purchased during marriage to one of them, for example, to the wife. In this case, the husband has the legal right to give the woman his share of housing.

This method is especially reasonable and in demand when the husband wants to protect and protect his wife as much as possible from the threat of dividing the apartment after his death.

The fact is that, according to the law, all property is divided between the closest relatives, and even if the deceased would not want it. Therefore, a pre-executed agreement on the donation of a share completely nullifies any attempt at a controversial division of housing.

Another situation often happens when a spouse has his own apartment purchased before marriage, and he wants to transfer a share in it to his wife. To do this, it is necessary to draw up a gift agreement and, if the spouses decide to separate in the future, then the donated share in the apartment will not be divided under any circumstances.

Prices and expenses for deeds of gift between spouses

Of course, one of the most important points for the parties themselves is the value of the deed of gift between spouses. In addition to registering the transaction with a notary, you will also need to pay for confirmation of the contract. The size of this amount in 2020 is no less than 0.5 of the actual cost of the gift itself.

At the same time, registration of property rights when registering with a notary is an additional expense.

Interesting fact : Quite often in our practice, husband and wife share the costs of drawing up a gift agreement equally. In addition, the donee must pay the state fee established by law.

Also, we are often asked whether it is necessary to pay income tax when making a gift between spouses? No, personal income tax or income tax is paid only in the event of a transaction between strangers and distant relatives . The amount of this tax today is 13% of the market value of the donated property. From a legal point of view, spouses are close relatives, and therefore there is no need to pay personal income tax.

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How can I return donated housing?

For example, a woman who received an apartment as a gift from her husband, for certain reasons, wants to return the housing.

To return the apartment to the donor, the law provides for a labor-intensive procedure involving the court.

You can return your home to the donor in the following cases:

If an attempt was made on the life of the donor (his close people) by the party who received the housing as a gift.
If the donor himself files a claim to cancel the donation through the court, due to improper handling of the housing by the new owner.
If the spouse dies and this condition is reflected in the deed of gift.

Important! The consent of both spouses on the return of housing is required. After mutual agreement of the parties, the agreement is signed. If one of the parties to the transaction disagrees, it is necessary to go to court.

Deed of gift with condition

The law provides for the registration of a deed of gift for an apartment, with the donor living in it for life.

This means that housing is transferred from husband to wife, but with certain conditions that are non-pecuniary in nature.

According to Article No. 572 of the Civil Code of the Russian Federation, the recipient of the gift does not owe the donor anything; only the gift agreement will indicate a number of conditions under which the donor receives the right to stay and live in the apartment until the end of his days.

We remind you that even if you thoroughly study all the data that is in the public domain, this will not replace the experience of professional lawyers! To get a detailed free consultation and resolve your issue as reliably as possible, you can contact specialists through the online form .

How to correctly draw up a deed of gift between husband and wife so that it is not considered illegal

As we already mentioned at the beginning of the article, to draw up a gift agreement it is not necessary to use the services of a professional, but a transaction accompanied by a notary will be as transparent as possible in the eyes of the law and the participation of a specialist will guarantee that all the points listed in the deed of gift will be fulfilled by those who agreed to it's sides!

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Donation agreement for non-residential premises: sample and current form

It is worth noting that today the participation of a lawyer in a gift transaction between spouses costs several thousand Russian rubles (and you can get advice from us absolutely free!), and therefore many choose the option of saving money by deciding to arrange everything themselves.

Important : Remember that when donating a share of real estate, you must contact a notary, otherwise the transaction will be considered illegal!

That’s why we have prepared for you important nuances that you should definitely pay attention to when drafting the document yourself:

We recommend that you draw up the contract not by hand, but on a computer, since many of us do not have perfect calligraphic handwriting, as a result of which the content may be difficult to read.
Today, a copy drawn up on a computer is very easy to enter into the electronic register.
By drawing up a deed of gift on a device, you can avoid gross grammatical errors, which often become the reason for refusal to register property rights.

Now, let's figure out what needs to be written/printed in the contract. After all, it will depend on its content whether the property becomes the property of the husband or wife.

So, a correctly drawn up deed of gift should include:

Important information about the parties to the transaction (address, passport details, etc.). In addition, we recommend focusing attention on who and from whom the property is transferred as a gift (from spouse to spouse or vice versa).
Rights, as well as obligations of the donor and the donee in relation to property and each other.
All important information regarding the property being transferred (description, technical characteristics, location address, etc.).
Features and nuances of concluding a gift agreement. For example, here you can include clauses and conditions, if they occur, the contract will be terminated.
List of all documents involved in the transaction (optional, at the request of the participants).
The date of drawing up and signing the agreement and the signatures of the parties.

In addition, the donor may note that the property being transferred has no encumbrances. Simply put, the fact that it does not act as collateral for legal entities and individuals.

For example, if real estate was purchased with a mortgage, which at the time of drawing up the deed of gift had not been paid, in order to transfer it you will need to obtain the consent of the banking organization acting as the lender.

Can donated housing be considered jointly acquired?

After a divorce, former spouses often have “housing wars,” and quite bloody ones at that. The most common question in such a situation is whether the previously donated apartment is the subject of joint division?

Following the letter of Russian law, the following objects cannot be divided:

Material benefits of each of their spouses that were received before marriage.
Personal belongings and clothing.
All gifts that were received as a result of a free and voluntary transaction.

Moreover, the last point is relevant even if you accept a gift while you are married.

Keep in mind! Residential premises accepted as a gift cannot be jointly acquired property. Accordingly, such an apartment cannot be divided in the event of a divorce.

Is property received under a gift agreement subject to division?

The subject of a gift agreement can be absolutely any movable or immovable property. More often, apartments, cars, and land plots are transferred free of charge using this document.

In some cases, an agreement is drawn up for things that can simply be transferred “from hand to hand” without unnecessary formalities. But in these situations, the receiving party receives some legal security both in case of divorce and in case of a scam with the subject of the transaction.

The main thing is that the donor himself has the right to transfer the subject of the transaction, otherwise it will be cancelled . The only drawback is the need to pay tax when concluding an agreement. If the fact of donation has been legally confirmed, then the property is considered personal, with the exception of the above nuances.

It is worth distinguishing between a formal and an official gift. For example, a husband gives his wife a car for their anniversary. Everyone knows that this is a free gift, but the man decides not to make a surprise. He brings his wife to complete the purchase and sale transaction.

Accordingly, such a gift will be clearly recognized by the court as jointly acquired property, because it was acquired during the marriage. Yes, the spouse earned or saved the funds for this purchase, but this part of the money belongs to the general budget.

Money received as a gift by husband/wife

Funds received as a gift or inheritance are considered the property of the recipient.

The total family budget consists of salaries, pensions and benefits.

But any compensation for losses from damage to personal property and insurance payments (under compulsory or voluntary insurance) belong only to their recipient.

Share of an apartment or house received as an inheritance/gift

If no improvements have been made through the joint budget, then shares in apartments and houses are considered personal. A completely different situation arises with housing that both spouses received as a gift or inheritance. Then each of them has the right to exactly half of the property.

If money was donated for repairs

In this situation, it matters who exactly the money was donated to and whether there is a corresponding agreement. If both spouses are recipients of the gift, then the funds are considered joint.

This is important to know: Donation agreement for the allocation of shares: sample

If the money was gifted to only one person, and repairs were made in a joint apartment, then the recipient can go to court with a demand to recover the amount spent from the second spouse.

Or the share of the owner of the funds in the apartment will be increased due to the funds invested in its improvement.

If the deed of gift was issued for a child

Their parents do not have the right to use it, and therefore cannot divide this property among themselves.

The child only has representatives who bear the costs of maintenance or paying taxes until he reaches 18 years of age. Which parent will take on this burden, the couple decides amicably among themselves, or the court does it for them.

Can a husband give his wife a home purchased during marriage?

It should be understood that if spouses purchase an apartment, this does not mean that it is jointly acquired. The husband has the right, if desired, to make a gift of his share to his wife, so that she receives the entire apartment purchased during the marriage.

Having secured the consent of his wife, the man must draw up the deed of gift himself or with the help of a notary office. You must have with you:

passports of the spouses: the donor and the recipient;
property papers;
technical passport for real estate;
cadastral passport;
marriage certificate (to avoid paying taxes).

Important! In the case where the husband and wife cannot sign the agreement in person, then an intermediary with a notarized power of attorney is needed.

What documents are needed for a deed of gift between spouses?

First of all, a spouse who has decided to transfer his own property to his partner should collect a package of documents established by law, the list of which includes:

Marriage certificate;
civil passports of the parties to the transaction;
an extract from the house register with a limited validity period of 30 days (therefore it should be included in the package of documents later);
all documents of title to the property being transferred as a gift, including documentation on the basis of what and under what conditions the donor became the owner of the transferred object (donation, purchase and sale agreement, inheritance, etc.);
technical documentation (for example, for a house - certificates from the BTI, cadastral passport, technical passport, etc.);
permission to make a donation in writing from other co-owners, if any.

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If the husband and wife turned to a notary to support the transaction, the specialist can expand this list by requesting additional certificates.

Summary

It is easy to understand that the donation procedure between spouses, as between close relatives, is very simple and transparent. But, despite its obvious simplicity, it has certain nuances.

When wanting to donate housing to his wife, a man must consider the following points:

In the case where housing was purchased during marriage, first of all it is necessary to determine the shares of property of each spouse, and only then the husband renounces his share in favor of his wife.
The spouse must be in a psychologically healthy state at the time of donation.
Giving is a voluntary act, therefore there can be no place for any moral oppression and pressure on the spouse from the wife.
There is a category of citizens who are not allowed to accept property as a gift, these are: doctors, social workers, government employees. All these categories of persons do not have the right to accept housing as a gift if they have a working relationship with the donor.
All participants in the donation transaction must be adults.

In conclusion, I would like to note that donating an apartment to your own wife is a fairly popular practice.

The spouse, first of all, must make a reasonable decision about how and in what way to do this, depending on the purpose of the transaction: through a deed of gift, through a purchase and sale agreement, or through a prenuptial agreement.