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Official Gazette

Friday, June 5, 2020

At-law inheritance in Vietnam’s current legislation

Updated: 10:38’ - 01/04/2011

Pham Diem
State and Law Institute of Vietnam

 

The custom in Vietnam is that property owners rarely make testaments to bequeath their property. In families, there is no clear-cut distinction between personal property of the husband and the wife and their common property, or between parents’ and children’s property. Yet, reality shows that most disputes over inheritance occur when property owners do not make testaments. Therefore, inheritance at law constitutes an important but complicated institution which must satisfy the practical requirements of life while conforming to Vietnamese customs and practices.

Under the 1990 Ordinance on Inheritance and the 1995 Civil Code, inheritance at law will take place in one of the following circumstances:

There is no testament;

Testaments are invalid;

All the testamentary heirs have died before the testator, or agencies or organizations, which are entitled to testamentary inheritance no longer exist at the time of the inheritance;

The persons appointed to be testamentary heirs are not entitled to the inheritance estates or disclaim the inheritance estates;

The inheritance estates have not been disposed of in the testaments;

The inheritance estates are bequeathed to testamentary heirs who are not entitled to the estates, disclaim the estates or have died before the testators, or are bequeathed to agencies or organizations entitled to the inheritance which are no longer in existence at the time of the inheritance.

All heirs at law who are individuals, regardless of their civil act capacity, shall be entitled to equal inheritance while having to fulfill the obligations left by the decedents within the limit of estates they have received.

Heirs at law include persons who have the following relationships with the decedents:

Husband and wife;

Family relationships such as between great grandparents and grandparents, grandparents and parents, parents and children, siblings of the same parents, and half-siblings.

Foster relationships based on adoption recognized by law, between foster parents and adopted children.

As the scope of heirs at law is large, the law has provided for three ranks of inheritance, whereby the second-rank and third-rank heirs are only entitled to inheritance if the decedents have no first-rank heirs or have first-rank heirs who are not entitled to or disclaim the inheritance estates.

The first rank of inheritance covers spouses, biological parents, adoptive parents, biological childrens and adopted children of the decedent.

Regarding the inheritance relationship between the husband and wife, the Civil Code also provides some special cases, such as:

- Where a couple applies for a divorce, but is not yet permitted by the court or the divorce judgment has not yet taken legal effect, if either of them dies, the other shall still be entitled to inherit the estate of the decedent.

- Where a couple has been in separation and has already divided the property, but later one dies, the survivor shall still be entitled to inherit the decedent’s estate because legally they remain husband and wife.

- Where a person is the wife or husband of a person at the time of the latter’s death, such person shall still be entitled to inherit the decedent’s estate even though he/she has married another person after his ex-wife’s or her ex-husband’s death.

Regarding the inheritance relationship between biological parents and biological children, the biological parents shall be the first-rank heirs of their biological children and vice versa. Being recognized by Vietnamese law as biological children, out-of-wedlock children shall, therefore, be among the first-rank heirs of their parents.

For heirs who are foster parents or adopted children, the Civil Code (Articles 679 and 680) also provides for the following cases:

- The families of the foster parents or adopted children have no inheritance relationship with the biological parents and children of the adoptive persons, and the parents of such adoptive persons shall also not be entitled to inherit the property of such adopted children;

- Where a foster father or a foster mother marries another person, the former’s adopted children shall not naturally be the adopted children of such person, and hence, they are not each other’s heirs;

- Persons adopted by others shall still have an inheritance relationship with their biological parents, grandparents and siblings like other family members who are not adopted by others;

- If stepchildren, stepfathers, and stepmothers are bound together through a fostering relationship like that between biological parents and their offspring, they are entitled to inherit each other’s property.

The second rank of inheritance shall include paternal grandparents, maternal grandparents, brothers and sisters of the decedents.

The paternal or maternal grandparents are second-rank heirs of their paternal and maternal grandchildren. Meanwhile, the paternal and maternal grandchildren are not second-rank heirs of their grandparents but only heirs by substitution if their parents die before their grandparents.

Siblings are each other’s second-rank heirs. Under the provisions of the Civil Code, half-brothers and half-sisters are also blood brothers and sisters. Yet, stepchildren, adopted children and foster children are not blood bothers and sisters. Persons adopted by others and their blood brothers and sisters at home are still each other’s second-rank heirs.

The third rank of inheritance shall cover paternal great grandparents, maternal great grandparents, blood uncles and aunts. The paternal great grandparents of a person are those who gave birth to such person’s paternal grandfather or grandmother and the maternal great grandparents of a person are those who gave birth to such person’s maternal grandfather or grandmother, while such person is a great grandchild.

Under the provisions of the Civil Code, paternal and maternal great grandparents are third-rank heirs of their great grandchildren while the great grandchildren are not third-rank heirs of their paternal and maternal great grandparents. But blood uncles and aunts and their nephews and nieces are each other’s heirs of the third rank.

Regarding inheritance by substitution, the Civil Code provides for cases in which the child of a decedent dies before the decedent; then, his/her grandchild is entitled to inherit the estate portion that his/her parents would have inherited if he/she were still alive.

In principle, heirs shall be obliged to perform the property obligations left by the decedents corresponding to the estate portions they have received. However, if the inheritance estate left by a decedent is not enough for payment, the Civil Code has provided the payment priority order as follows:

Reasonable expenses for funeral.

Deficit support allowances.

Support allowances for surviving dependents.

Labor remuneration.

Pecuniary compensation for damages.

Taxes and other debts owed to the State.

Fines.

Debts owed to individuals, legal persons, and organizations.

Expenses for preservation of inheritance estates.

Other expenses.

As the Vietnamese people greatly treasure the role of families and family lines, inheritance has always been perceived as the internal affairs of families and the division of estates seen as be based on voluntarism, mutual love and unity among the heirs. Courts shall settle the division of inheritance estates only when the heirs fail to reach agreement among themselves. In the spirit and principles of law, inheritance estates shall be divided equally to heirs of the same rank and property on the basis of the requirements of production, work and daily-life activities of the heirs.-

 

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