Selected Q&A on the legal answering network
If the subrogated heir has never fulfilled his maintenance obligations after reaching adulthood, should the estate be divided equally?
Q&A: Judging from the current legal provisions, legal succession is based on the principle of equal inheritance, and only stipulates that more than "may" be divided rather than "should" be given more support obligations. However, as far as subrogation is concerned, the subrogated heir only inherits the inheritance rights of his or her father or mother as the first heir in line to the decedent, and does not involve the issue of maintenance obligations. Such an institutional arrangement reflects a positive encouragement of maintenance, but still emphasizes the maintenance of the status-based relationship of inheritance rights and obligations. Therefore, for subrogated heirs, the fundamental factor that determines whether they can inherit equally lies in whether their status meets the constitutive requirements of subrogation. Of course, in such a case, if the other heirs have fulfilled more maintenance obligations, they should also let the heirs concerned share more, rather than let the subrogated heirs share less.
Consultant: Li Yan, Civil Trial Division, Shanghai Hongkou District People's Court
Q&A expert: Xiong Yan, Comprehensive Trial Court for Juvenile and Family Cases of Shanghai No. 2 Intermediate People's Court
(Excerpted from "Selected Questions and Answers on the Legal Answering Network (Fourth Batch)", People's Court Daily, April 11, 2024, 7th edition)
Referee Rules
1. If the heir dies before the decedent, the children of the heir enjoy the right of subrogation and can inherit the share of the inheritance that the heir should inherit - Zhang X 1 v. Zhang X 2 Legal Inheritance Dispute
Gist of the case: After the decedent's children die before the heirs or are declared dead, the immediate family members of the decedent's children replace the inherited children's inheritance order and inherit the share of the inheritance that the decedent's children should inherit.
Case source: Panzhihua Intermediate People's Court website, release date: October 16, 2021
2. For those who support the deceased more than the heir, they can appropriately share the inheritance - Su Yi v. Li Jia and Li B, a subrogation dispute case
Gist of the case: If the decedent's siblings die before the decedent, the heirs of the decedent's siblings may inherit the decedent's estate as subrogated heirs. Persons other than the heirs who have more support for the deceased may receive an appropriate share of the inheritance.
Trial court: Shanghai Xuhui District People's Court
Source of the case: Typical cases of Shanghai courts promoting the core values of socialism
3. If the subrogated heir lacks the ability to work and has no source of livelihood, or has fulfilled the main obligation of support to the decedent, when distributing the inheritance, he may divide more - Lei X 1 et al. v. Lei X 5 et al
The gist of the case: If the subrogated heir lacks the ability to work and has no source of livelihood, or has fulfilled the main maintenance obligation to the decedent, the inheritance can be divided more. The subrogated heir and the decedent have lived together for a long time, taking care of each other and being considerate, which has played a role in spiritual comfort for the decedent, especially the elderly, and should share the inheritance more.
Case No.: (2023) Gan 1026 Min Chu No. 2799
Trial court: Ning County People's Court of Gansu Province
Source: China Judgments Network, published on February 4, 2024
4. The subrogated heir can generally only inherit the share of the inheritance that the subrogated heir is entitled to, and if the subrogated heir lacks the ability to work and has no source of livelihood, or has fulfilled the main maintenance obligation to the decedent, when distributing the inheritance, it can be divided more - Pan X 1 v. Pan X 2 Legal Inheritance Dispute Case
Gist of the case: The subrogated heir can generally only inherit the share of the estate that the subrogated heir is entitled to. If the subrogated heir lacks the ability to work and has no source of livelihood, or has fulfilled the main obligation of support to the decedent, he may divide the inheritance more than he or she wants. After the death of his father, the subrogated heir lives with the decedent, pays the nanny fee for the decedent to hire a nanny after the decedent is paralyzed in bed, takes care of the funeral for the decedent after the decedent's death, pays the funeral expenses, and fulfills the main obligation of support to the decedent, and can divide the inheritance more.
Case No.: (2021) Zhe 1082 Min Chu No. 8468
Trial court: Linhai Municipal People's Court of Zhejiang Province
Source: China Judgments Network, published on July 1, 2022
5. The subrogated heir can inherit the share of the inheritance that the heir should inherit, and if the other legal heirs have fulfilled more maintenance obligations to the decedent, they shall be appropriately divided in the distribution of the inheritance - Ma X 2 v. Ma X 1 and Ma X 3 Legal Inheritance Dispute Case
Gist of the case: If the decedent's children die before the decedent, the heir's share of the inheritance shall be inherited by the descendants of the decedent's direct blood relatives. Where other legal heirs have fulfilled a greater obligation to support the decedent, they shall be appropriately divided in the distribution of the estate.
Case No.: (2020) Jing Min Shen No. 1736
Trial court: Beijing Higher People's Court
Case source: China Judgments Network, release date: May 7, 2020
6. If the subrogated heir is the grandson of the decedent, and his father has died before the decedent, and he has the right of subrogation to the property left by the decedent, and the other legal heirs do not fulfill their obligation to support the decedent, they shall not divide or divide the inheritance less--Liu v. Su X 1 and Su X 2 subrogation dispute case
Gist of the case: The subrogated heir, as the grandson of the decedent, whose father has died before the decedent, has the right of subrogation to the property left by the decedent. Respecting the elderly and caring for the young is a traditional virtue of the Chinese nation, and it is the legal obligation of children to support their parents. Other legal heirs did not fulfill their obligations to support the decedent, but instead took possession of the decedent's property and house without authorization, resulting in physical and mental suffering suffered by the decedent in his later years, and even transferred the decedent's estate after the death of the decedent, and the inheritance should be divided less.
Case No.: (2020) Qing Min Shen No. 70
Trial court: Qinghai Provincial High People's Court
Source of the case: China Judgments Network, published on April 21, 2020
Judicial perspectives
1. The share of subrogation is generally the share of the inheritance that the subrogated heir is entitled to
The share of subrogation refers to the share of the inheritance that the subrogated heir can obtain by way of subrogation. This Law (the Civil Code, the same below) stipulates that a subrogated heir can generally only inherit the share of the estate that the subrogated heir is entitled to inherit, that is, how much share the subrogated heir can inherit if he is alive, and the subrogated heir can generally only inherit the same share. It is a general principle that a subrogated heir can only inherit the share of the estate to which the subrogated heir is entitled to inherit, and the share of the inherited estate may change when there are circumstances such as more, less or no division as prescribed by law, so this law stipulates that "a subrogated heir can generally only inherit the share of the estate that the subrogated heir is entitled to".
(Excerpted from the Civil Law Office of the Legislative Affairs Commission of the Standing Committee of the National People's Congress, "The Civil Code of the People's Republic of China" Inheritance Study Reader, China Democracy and Legal Publishing House, 2021 edition, pp. 30~31)
2. Effect of subrogation
According to paragraph 3 of this article (Article 1128 of the Civil Code), a subrogated heir can generally only inherit the share of the estate to which the subrogated heir is entitled. That is, if the subrogated heir loses the right to inherit, he or she has no right to inherit the estate. Correspondingly, the subrogation heir can no longer claim subrogation in principle. However, it is worth noting that although the heirs of this era cannot claim subrogation, they can still refer to the relevant provisions on the right to claim discretionary distribution of the estate, and claim an appropriate share of the estate if the statutory conditions are met.
In this regard, Article 17 of the Interpretation (I) of the Inheritance Part of the Civil Code has stipulated that if the heir loses the right of inheritance, his direct blood relatives of the younger generation shall not inherit by subrogation. If the subrogated heir lacks the ability to work and has no source of livelihood, or has a large obligation to support the decedent, the inheritance may be appropriately distributed. In addition, since a subrogated heir or subrogated heir only exercises the right of inheritance by subrogating his or her father, the inheritance inherited by him or her is in principle limited to the share of the inheritance to which the subrogated person is entitled. However, taking into account the differences in circumstances between the subrogated heir and other heirs, the subrogated heir, as the heir, should also accept the adjustment provided for in Article 1130 of the Civil Code. In this regard, Article 16 of the Interpretation (I) of the Inheritance Part of the Civil Code also stipulates that if the subrogated heir lacks the ability to work and has no source of livelihood, or has fulfilled the main obligation of support to the decedent, he may divide the inheritance more than he can.
(Excerpted from Xiao Feng and Liu Yaodong, "Interpretation and Difficult Application of the Inheritance Provisions of the Civil Code of the People's Republic of China", People's Court Press, 2022 edition, p. 104)
Letters of the law
1. Civil Code of the People's Republic of China
Article 1128: [Subrogation] Where the children of the decedent die before the decedent, the direct descendants of the decedent's children are to inherit by subrogation.
If the decedent's siblings die before the decedent, the children of the decedent's siblings shall inherit by subrogation.
Subrogated heirs can generally only inherit the share of the estate to which the subrogated heir is entitled.
Article 1130: [Principles of Estate Distribution]The share of inheritance inherited by heirs in the same order shall generally be equal.
Heirs who have special difficulties in life and lack the ability to work shall be taken care of when distributing the inheritance.
Heirs who have fulfilled their primary obligation to support the decedent or who live with the decedent may receive an additional share of the estate when the estate is distributed.
If an heir who has the ability and the capacity to support does not fulfill his obligation to support, the inheritance shall be distributed without or less.
Where the heirs agree through consultation, it may also be unequal.
2. Interpretation of the Supreme People's Court on the Application of the Inheritance Part of the Civil Code of the People's Republic of China (1)
Article 16 Where the subrogated heir lacks the ability to work and has no source of livelihood, or has fulfilled the main obligation of support to the decedent, he may divide the inheritance in an additional amount.
Article 17: Where heirs lose the right to inherit, their descendants may not inherit by subrogation. If the subrogated heir lacks the ability to work and has no source of livelihood, or has a large obligation to support the decedent, the inheritance may be appropriately distributed.