Giving a spouse a share of an apartment: tax, during marriage

Families often come to the conclusion that the apartment should be owned by one of the spouses , and not in the shares of each of them.

The next question is: is it problematic for one of the couple to give the other his share, and what is the correct thing to do in this case?

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

Read on our website about how to register an apartment as a gift to a close relative, what documents are required for this, and how to correctly draw up and conclude an agreement.

About the opportunity

Can a husband give his wife his share of real estate? Or can a wife give it to her husband? This possibility really exists .

• Residential real estate acquired during the marriage is considered jointly acquired , common, and is divided in half.
• However, when allocating a share, this does not mean that the part is necessarily 50% - it can be anything.
• If one of the couple has learned about his illness and wants to protect his life partner from sharing his home with insufficiently well-educated children, then donating a part is an excellent way to protect the property from attacks.

You can learn how to draw up a deed of gift for living space between spouses from our article. about how donated real estate is divided after divorce.

The legislative framework

What laws govern it? The donation of a part of a home is procedurally almost identical to the same transaction only for the entire property (Civil Code of the Russian Federation, Article 572, paragraph 1) and requires a written agreement with subsequent registration.

Family Code of the Russian Federation Art. 34, 39 provides for the very possibility of donating a share of housing to a spouse, but limits the amount, allowing the gift of no more than ½ , that is, half of the jointly acquired property belonging to each, in this case, residential real estate.

If we are talking about the share of housing owned personally by one of the spouses , then there are no restrictions on the disposal of your personal property.

Read our article about how to challenge or cancel a gift agreement.

Grounds for concluding an agreement

In order for one of a married couple to be able to donate part of the housing to his spouse, there must be a basis - a document establishing the right to own the share - for example, a certificate. To give a gift to your partner, you need to have something to present.

Who should be present at the registration? The presence of both spouses at the time of execution of the contract is mandatory.

1. Drawing up a gift agreement is not a particularly complicated procedure, and it can be carried out without the involvement of outsiders.
2. But still, it is better to entrust this matter to a professional lawyer, a notary, since ignorance of some nuances can lead to undesirable consequences.
3. This option for drawing up a contract is more expensive, but also more reliable and correct: if legal proceedings are pending, then such a document can be very useful.
4. The deed of gift may be simple, but it is better if it is drawn up by a specialist.

Where to start, where to go

First, you need to discuss all possible, both desirable and undesirable, options for the course of events, and it is better to write down the questions that arise on paper: this way, citizens ignorant of the nuances of jurisprudence will be able to remember to ask the notary all the questions that interest them in order to clarify the wording.

You should also find out what documents are required and order the missing certificates, then make copies of all the papers and go to the notary for the deed of gift.

Where is it issued? The deed of gift is drawn up by a notary ; the presence of both parties is required. Having added the document to the rest of the package of papers, you should send it to the registration authority at the location of the residential real estate (Article 574 of the Civil Code of the Russian Federation, Article 131 of the Civil Code of the Russian Federation).

This body is called Rosreestr. There is an option to contact the MFC, where you can sign the papers and submit them for registration, and the actual registration procedure is carried out only at the Federal Registration Service.

Submission of documents

What documents are required? The list of documents includes the following papers:

• passports of spouses;
• deed of gift;
• title documents for apartment shares;
• a check confirming payment of the state duty;
• cadastral passport of the dwelling (if you have not received it before, you should pre-order it from the cadastral chamber of Rosreestr);
• a certificate of persons registered in the living space (this is form No. 9, issued by the housing department);
• certificate of inventory value of housing (obtained from the BTI);
• application from the donor to register the transfer of ownership rights to the share to the recipient;
• application from the recipient for registration of ownership rights to the acquired share;
• consent of other co-owners, if any, to the transaction.

This is the main list of papers.

For example, a certificate about the number of people registered is not always required, but if the citizen receiving the gift does not live in that apartment and is aware of the state of affairs only in words, then it would be nice to get such a document at least for yourself.

Where to submit documents? They submit documents through a single window, where the registrar will check all the data with the original passports, making sure that in front of him are exactly those citizens whose data is included in the deed of gift and in the applications.

Having signed the gift agreement in the presence of the registrar, the participants in the transaction will receive a receipt for the confiscated papers (except for passports, which remain with their owners).

Here they will be told exactly when they need to come to receive the completed documents after the registration procedure.

Receipt times and cost

The deadline for receiving completed documents is about 10 days from the date of submission of applications and deeds of gift.

The state fee for registering a gift agreement is 2000 rubles.

A notary is paid differently for his work, depending on the status of the locality and the popularity of the notary. This amount ranges from 2 to 8 thousand rubles .

Read our article about whether you need to pay tax when making a gift to a close relative.

Failure Cases

When can they refuse? The Federal Registration Service may refuse a service for the following reasons :

• the gift agreement was drawn up incorrectly;
• there are inconsistencies in the certificate of ownership and cadastral passport regarding the area of ​​housing;
• not all co-owners gave consent, etc.

Having received a refusal, you should not give up on the absolutely correct decision to transfer ownership rights to your significant other; you should try to eliminate the comments issued and try again.

Features and nuances

There are no questions if the spouse gives his own property, which belongs to him personally, and a completely different meaning if the gift is jointly acquired property.

Real estate in joint ownership: how to donate a part? This case presents a legal paradox , because housing is joint property, and when giving his share to his spouse, the donor is obliged to ask the recipient for permission to do so.

To successfully resolve this problem, you need to first allocate the shares, and only then donate a specific one; without allocating the marital share, the registration will not be allowed at the Federal Registration Service.

If a gift agreement has been drawn up, but has not gone through the registration procedure and ownership rights have not been transferred from one spouse to the other, then it turns out that there is actually no gift , there is only an intention to make it.

In fact, drawing up a deed of gift is the most convenient and inexpensive option to transfer your property in the form of a share in an apartment to your spouse, since this action is exempt from taxes.

You can find out what documents are required to formalize the donation of a share of an apartment to a spouse from the video:

Source: https://pravo.guru/gilishnoe-pr/nedvigimost/kvartira/darenie-kvartiry/dolja-dar/mezhdu-suprugami.html

How to give an apartment to your wife - instructions

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:

1. 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.
2. 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.
3. 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.

Read also: Maternity capital for the first child from 2020: amount, where to apply, documents

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:

1. 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.
2. The husband and wife fill out a standard gift agreement.
3. Then the spouses submit a completed application to Rosreestr requesting the transfer of property rights from husband to wife.
4. 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.

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.

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.

It should be noted that the process of donating a share is absolutely identical to the procedure for transferring the entire apartment. There are small distinctive nuances only in the documentary package.

If a spouse refuses a share of housing acquired during marriage, it is necessary to obtain the written consent of the wife: first, to the right to alienate one of the residential shares, and then to agree to accept the alienated share of housing as a gift for personal use.

After completing the documentation package, the husband and wife inform Rosreestr regarding the fact of the transaction so that the changes acquire official status.

Remember! A deed of gift, which is carried out for the good purpose of protecting and providing a woman with an apartment after the death of her husband, requires timely registration. And in the case where, before the death of the spouse, the agreement was never registered in Rosreestr, the housing will be legally shared by all heirs.

How can you 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:

1. If an attempt was made on the life of the donor (his close people) by the party who received the housing as a gift.
2. 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.
3. 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

1. The law provides for the registration of a deed of gift for an apartment, with the donor living in it for life.
2. This means that housing is transferred from husband to wife, but with certain conditions that are non-pecuniary in nature.
3. 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 .

Can donated housing be considered jointly owned?

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:

1. Material benefits of each of their spouses that were received before marriage.
2. Personal belongings and clothing.
3. 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.

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:

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.

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:

1. 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.
2. The spouse must be in a psychologically healthy state at the time of donation.
3. Giving is a voluntary act, therefore there can be no place for any moral oppression and pressure on the spouse from the wife.
4. 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.
5. 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.

How to give an apartment to your wife - features of drawing up a deed of gift Link to the main publication

If property is transferred between spouses under a gift agreement, is it necessary to pay tax? Is it important for tax purposes what property is given to the wife or husband (apartment, car, money)? Is a gift agreement between former spouses subject to tax?

Gift to spouse: tax

The spouse who gifts property to the other spouse receives no income. But the spouse who receives a gift of an apartment (share of an apartment), other real estate, a car, or cash receives income in kind/cash. Does the donee spouse have to pay income tax (NDFL)?

Is a gift agreement between spouses taxable?

The answer to this question is given in paragraph 18.

1 of Article 217 of the Tax Code of the Russian Federation, according to which “income in cash and in kind received from individuals as a gift is exempt from taxation, with the exception of cases of donation of real estate, vehicles, shares, interests, shares, unless otherwise provided by this paragraph” . It is further stated that income received as a gift is exempt from taxation if the donor and recipient are family members and (or) close relatives in accordance with the Family Code of the Russian Federation.

A husband and wife are recognized as family members, therefore, as in the case of a gift between close relatives, who are parents and children, brothers/sisters, grandparents and grandchildren, there is no need to pay tax on a gift.

Tax when donating an apartment, house, land to a spouse

The deed of gift for an apartment to the wife from the husband is also not subject to tax, i.e. the wife does not have to pay personal income tax on income in the form of a donated apartment. This rule applies to donations of any real estate between spouses.

• Taxation when a husband gives a car to his wife
• If a husband transfers a car to his wife under a gift agreement, then the wife who accepted the gift does not need to pay income tax.
• Is it necessary to submit a declaration when donating real estate or a car to a spouse?

A wife who received real estate or a car as a gift from her husband has the right not to file a tax return (Letter of the Federal Tax Service of Russia dated 06/05/2012 No. ED-3-3/1975@).

The income of one spouse in the form of a gift received from the other spouse is not subject to taxation.

Is there a tax on gifts between spouses?

Income in the form of a monetary gift in the case of a gift between individuals is not subject to taxation, regardless of whether the donor and recipient are family members and (or) close relatives (Letter of the Federal Tax Service of Russia dated July 10, 2012 No. ED-4-3/11325@). That is, a wife who receives even a large sum of money from her husband as a gift is exempt from the obligation to pay tax.

Read also: Rights of minor parents, duties and responsibilities

Gift tax to ex-spouse

The norm of paragraph 18.1 of Article 217 of the Tax Code of the Russian Federation on tax exemption for gifts applies to married spouses.

Is a gift to an ex-wife or ex-husband, for example, an apartment, subject to tax? If the marriage is officially dissolved at the time the deed of gift is concluded, then the divorced wife will have to file a 3-NDFL declaration and pay tax when donating the apartment by her ex-spouse. Please note that when donating money between former spouses, there is no obligation to pay tax.

Gift agreement between spouses

The classic version of a gift agreement between spouses is not at all difficult to draw up. Such transactions do not contradict the current legislation of the Russian Federation, but differ from deeds of gift between strangers in several nuances that can significantly save family funds and time for each of the parties.

We invite all Readers of the Legal Ambulance website to learn about all the features of concluding such a transaction with real estate and movable property, and also (if necessary) to receive a free online legal consultation with detailed explanations on your specific situation!

General concept

According to the current legislation in Russia, donations of movable and immovable property that are part of the personal property of the donor can be made to any person chosen by him, regardless of the degree of relationship and social status in society. In 2020, a deed of gift can be easily issued between spouses on the following grounds:

• Concluding a gift agreement for tax distribution.
• This condition can be specified when drawing up a marriage contract.
• Transfer of ownership of an object between husband and wife in cases where one of the parties to the transaction cannot act as the owner due to his public position, which imposes certain obligations.

Of course, this is not the entire list of such reasons. At the same time, the law does not oblige the donor and recipient to voice or describe these reasons.

At the stage of execution of the contract by the parties, persons participating in the transaction should familiarize themselves with the following 5 important nuances:

1. The recipient and the giving party must be legally capable.
2. A donation agreement for an apartment, house, car, securities and other objects is a completely gratuitous transaction, and therefore the current owner of the property is prohibited from demanding that the person who agreed to accept the property as a gift perform any actions, especially money.
3. A deed of gift for a wife or husband, according to the legislation in force in 2020, may not be certified by a notary. At the same time, the law does not prohibit and even recommends, when concluding this type of transaction, to use the service of legal support for the process of concluding an agreement and transferring property under it.
4. Officially married recipients and donors today have more advantages when drawing up deeds of gift than strangers.
5. During the execution of the contract, both parties to the transaction or their legal representatives must be present, holding in their hands the corresponding order certified by a notary.

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!

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.

Additional information: Gift deed after the death of the donor

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:

1. 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).
2. Rights, as well as obligations of the donor and the donee in relation to property and each other.
3. All important information regarding the property being transferred (description, technical characteristics, location address, etc.).
4. 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.
5. List of all documents involved in the transaction (optional, at the request of the participants).
6. 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.

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.

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

How does the donation procedure work between husband and wife?

One of the main conditions for a deed of gift is the consent of the donor to transfer the object into the ownership of the donee and the consent of the latter to accept this property. At the same time, with all the desire, the current owner cannot “impose” a transaction on the donee.

Important : After confirmation of agreement by the parties (signing of the contract), the transaction must be completed by registering the ownership of the property of the new owner.

To do this, it is enough to submit the necessary documents to Rosreestr (the presence of both parties is required). If the donee or donor cannot be present, they can send a legal representative in their place, who must have a power of attorney certified by a notary. Also, the wife and husband will need the following papers:

Update of legislation - what has already been adopted, and what else will be adopted?

1. statement on the transfer of ownership from the donor to the donee;
2. three copies of the deed of gift;
3. a certificate of successful payment of the state fee (we’ll talk about it a little later).

After the parties to the transaction submit the papers, they are given receipts confirming the acceptance of the documents, on the basis of which they will be returned to their owners on the specified calendar day. The registration procedure itself, as a rule, lasts from 5 to 10 days and at the end of this period the donee is considered the full-fledged legal owner of the gift.

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.

Is it possible to cancel a deed of gift for a husband or wife?

It is equally important to be aware of all the legal consequences of the concluded gift agreement. So, after registering his property rights, the recipient becomes the legal owner of the donated apartment, house or, for example, a summer house and no one can influence this. At the same time, property acquired as a gift during a divorce is not divided, since it is not part of the jointly acquired property, being personal.

However, more and more often, we have to deal with the termination of deeds of gift, even between close relatives. Especially when they were concluded without legal assistance, based on the trust of the parties in each other.

As a rule, the grounds for challenging a contract are:

1. Gross errors in the content of the deed of gift. Even if such an error is not noticed by Rosreestr employees, the document may later be canceled by a court decision.
2. Failure of the recipient to comply with the conditions for the maintenance of the gift object. Thus, the transaction can be reversed if the recipient ignores the terms of the contract and acts in bad faith with the duties that he previously agreed to perform.
3. The owner of the transferred property was in a drug or alcoholic state at the time of drawing up or signing the deed of gift.
4. The owner of the transferred gift had no idea about the actual consequences of the transaction due to the fact that he was misled.

These are the most frequently cited 4 reasons for canceling a contract. However, this does not mean that others do not exist! If you need to recognize the transaction in question as invalid, be sure to contact a lawyer!

Important : We remind you that although the statute of limitations is 3 years, in some cases it can be extended by court decision.

Read also: What documents are needed for school in 1st grade: when to submit

We also recommend that you listen to the advice in this expert video:

Deed of gift between husband and wife: is it as profitable as it seems?

It’s strange, but a lot of our Regular Readers ask a similar question. Here are just some of the positive aspects of this type of alienation of real and movable property:

• No taxation (personal income tax) - a very significant amount, amounting to 13% of the total value of the gift.
• Quick registration of property rights, which, for example, is simply irreplaceable when one of the spouses is seriously ill.
• The minimum required documents, most of which are already in the hands of the owner of the transferred property, and the rest (1-2 certificates) can be issued in a short time.
• The right of ownership passes to the recipient on the day of registration of the transferred property, after which no one, including the donor, will be able to prevent him from disposing of the received house, apartment, cottage or garage at his own discretion.

Instead of an afterword

A husband or wife has the legal right to give their “other half” almost any property. To do this, it is enough to obtain the consent of the donee and prepare the necessary documentation.

The main thing is to remember that even the signing of a correctly drawn up deed of gift between spouses, a sample of which can be downloaded above, is nothing without state registration of the property rights of the new owner!

The privatization spouse received a share in the apartment. How can he now give this share to his second spouse?

Hello. I often get asked questions, on the basis of which I write my articles.

This is another one of them: Mikhail, together with his mother and father, privatized an apartment in 2009. Each has 1/3 share.

Now Mikhail asks how he can give his share to his wife Olga, whether it is necessary to ask the consent of other owners, etc. Let's write down what needs to be done.

If a citizen received a share in an apartment during privatization and decided to give this share to his spouse, then they must go to a notary to certify the gift agreement.

Below I will describe in detail why a notary is required, but if you are not interested in this, then you can immediately go to the detailed instructions for completing the transaction.

Firstly: When an apartment is privatized for SEVERAL people, then each participant in the privatization receives ownership of a specific share in this apartment (1/2, 1/3, etc.).

That is, the privatized apartment is registered as SHARED ownership - first on the basis of the first paragraph of Art. 2 of the Law on Privatization, then according to paragraph 3 of Art. 244 Civil Code of the Russian Federation.

BUT it happens that the apartment is privatized into joint ownership - more on that below.

Secondly: If there are several owners in the apartment (when the apartment is in shared ownership), and one owner wants to donate his share to someone, then this donation transaction requires notarization - clause 1 of Art. 42 Federal Law on real estate registration. Therefore, you cannot do without a notary.

Important additions:

• To donate your privatized share to anyone, the consent of other owners or those registered in the apartment is NOT required. And permission from the guardianship authorities is NOT required if one of the owners or registered persons is a minor. There is no such requirement written anywhere in the law.
• Since the spouses are close relatives to each other, the donee spouse (to whom the gift was given) DOES NOT pay tax on the gift - clause 18.1 of Art. 217 Tax Code of the Russian Federation. The donor never pays any tax after the donation at all, because he does not receive any benefit from the transaction.
• The donated share, like any donated real estate, is not divided between spouses after a divorce, but will remain with the spouse-owner - clause 1 of Art. 36 IC RF. It makes no difference whether it was given during marriage or before marriage.
• As soon as the spouse has registered the privatized share in his property, he can immediately donate it, even the next day. There is no deadline in the law.

Show case study

Daria, her husband, mother and father privatized the apartment in 2010. 1/4 each. In April 2018, Daria decided to give her share to her husband. We went to a notary, and he drew up a notarial agreement for the donation of a share, which they then submitted to the MFC for registration. They did not ask the other owners for consent.

We make a deal

It is written above why spouses need to contact a notary. Now I will write out detailed instructions, which are partially taken from our main article, but rewritten to suit the situation with spouses.

Important: It happens that a privatized apartment was registered by citizens not as shared ownership, but as joint ownership. Before 2005, it was possible to do this, but after that it was possible only in shares. In case of joint ownership, the shares of each owner are NOT determined - clause 2 of Art. 244 Civil Code of the Russian Federation. But you can only give something specific - a share, an apartment, etc. It's logical.

Therefore, before giving your spouse your share, it must be clearly defined. That is, transfer a privatized apartment from joint ownership to shared ownership. To do this, all owners need to draw up an agreement on the determination of shares (not allocation!) - not notarized, but in a simple form.

In the agreement, the shares of each owner must be equal. Then the owners need to submit this agreement to the MFC for registration, additionally submit their passports and privatization agreement. State registration fee - 500 rubles. (Clause 6, Clause 1, Article 333.24 of the Tax Code of the Russian Federation).

After this, each owner will have their own specific share, which can now be safely donated, but only through a notary.

To get started, choose a notary

When donating, you can contact any local notary at the location of the apartment, but within the constituent entity of the Russian Federation - Art. 56 Basics about notaries. The list of subjects of the Russian Federation is indicated in Art. 65 of the Constitution.

This means that if the apartment is located in Moscow or St. Petersburg, then you can contact any notary in Moscow or St. Petersburg. Because these two cities are considered separate subjects of the Russian Federation. In other cases, you can go to any notary of the region/territory/republic/district.

For example, if the apartment is in Krasnodar, then to any notary in the Krasnodar region.

If one of the spouses cannot personally contact a notary (for example, is in another city/region), then he must draw up a power of attorney with his local notary and send it by mail to his authorized representative.

And the authorized representative, together with the second spouse, will contact his notary to draw up and sign the agreement. The donee cannot issue a power of attorney to the donor himself to sign a gift agreement for him, and vice versa.

Because the donor and the donee cannot be the same person - clause 3 of Art. 182 of the Civil Code of the Russian Federation.

In our experience, the main thing when choosing is the service and maintenance it provides. Notary prices for all services are almost the same, the difference is small. Therefore, read the reviews - is the notary polite with clients, are his employees fast, are they ready to advise, etc.

I advise you to focus on this, because since 2016, about 90% of real estate transactions go through notaries. Because of this, they have no problems with clients, which is why many stop monitoring the quality of their services, believing that there is still a lot of demand and people will come.

Visit the Yandex.Map notary search page. It’s convenient to search on Yandex.Map - you can find a notary near you, read reviews about him, look at his ratings, find out his phone number, address, opening hours, etc.

Stage No. 1 – Collecting documents

I advise spouses to contact a notary in advance and get advice. The notary will listen and draw up the entire list of documents that need to be collected. Main list:

• passports ; If the party is represented by a proxy, then his passport and a notarized power of attorney. The power of attorney can also be issued by the same notary.
• Marriage registration certificate;
• Certificate of registration of rights or a paper extract from the Unified State Register of Real Estate about the property ; They are needed so that the donor of the share confirms ownership of it. Registration certificates have been canceled and have not been issued since July 2016. But if you have a certificate that was issued before July 2016, then bring it. If there is no certificate, then a paper extract from the Unified State Register of Real Estate about the property will do. The property in this case is an apartment. The extract also confirms ownership. Anyone can order it for 400 rubles. at the MFC. How to do this is written in detail here.
• Privatization agreement;
• Technical passport for the apartment . You can order it at the BTI or at the MFC.

1. Next, both spouses (or authorized representatives) need to come to the notary and give the documents that are written above. The notary may require additional ones.
2. The notary (or his assistant) will print the gift agreement in several copies . There will be three copies - one will be on special paper with watermarks and two on regular paper.
3. The spouses sign the drawn up agreements in front of the notary (and only in front of him), then the notary will notarize them (certify the signatures). A copy of the agreement on special paper will be given to the recipient spouse. The donor spouse will be given a notarial agreement on plain paper, and the notary will keep the same for himself for the archive.

How much notary services cost when donating a share is written in the section “If the contract is certified without fail” of this article - prozhivem.com/kvartira/dolja/darenie/tarify-notaruisov-na-sostavlenie-i-zaverenije-dogovora.

Stage No. 3 – Registration of the transaction

In order for the transaction to be considered officially completed, the gift agreement along with other documents must be submitted for registration. Since February 2019, a notary is obliged to submit a notarial agreement for registration of a gift agreement HIMSELF AND FREE OF CHARGE , because

this is included in the basic transaction certification service. Art. 1 of Federal Law No. 338-FZ of August 3, 2018, excluded the notary fee from Art. 22.1 Basics about notaries. According to the same article, a notary has no right to charge money for additional legal services.

Participants must pay the notary only the state fee for registering the transaction - 2000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). Moreover, if a notary submits documents electronically, you need to pay 1,400 rubles - Rosreestr has set a discount of 30%.

According to the law, the state fee is paid by the donee, but in practice it doesn’t matter who pays the state fee.

After registering the transaction, the documents must be collected from the notary. If the notary submits documents electronically, the transaction must be registered within one business day.

If the notary does not have the opportunity to submit electronically, then he or his assistant must submit the documents in person to the Rosreestr office and within a maximum of 2 business days. The registration period will be 3 working days after submission. All this is indicated in paragraph 9 of Art.

16 of the Federal Law on Real Estate Registration of July 13, 2015 N 218-FZ. In practice, there are delays due to the workload of Rosreestr.