Vợ/chồng góa hưởng bao nhiêu phần di sản? (Luật sư Lê Bình Phương phân tích)How Much of the Estate Does a Surviving Spouse Receive? (Analysis by Lawyer Lê Bình Phương)

Reference translation for convenience. The Vietnamese version is the authoritative text.

Overview

When a spouse passes away, the surviving partner often finds themselves in a complex legal situation: they must simultaneously deal with the common property and divide the estate with the deceased’s parents and children. In many cases, the surviving spouse assumes “the assets are mine because I am the one still alive” — a misunderstanding that leads to bitter disputes with the in-laws.

This article analyses in detail the rights of the surviving spouse under the Civil Code 2015, the Law on Marriage and Family 2014, and the mandatory inheritance right independent of any will under Article 644.

Relevant Legal Provisions

Civil Code 2015 — Article 612 (Estate):

“An estate comprises the deceased’s own property and the deceased’s share of property held jointly with others.”

Civil Code 2015 — Article 651 (Statutory heirs):

“1. Statutory heirs are ranked in the following order: a) The first rank of heirs comprises: the spouse, biological father, biological mother, adoptive father, adoptive mother, biological children, and adopted children of the deceased; b) The second rank of heirs comprises: the paternal grandparents, maternal grandparents, full siblings of the deceased; and the grandchildren of the deceased where the deceased is the paternal or maternal grandparent; c) The third rank of heirs comprises: the great-grandparents of the deceased; the full paternal and maternal uncles, aunts, and grand-uncles and grand-aunts of the deceased; the grandchildren of the deceased where the deceased is a full uncle, aunt, grand-uncle, or grand-aunt; and the great-grandchildren of the deceased where the deceased is a great-grandparent.”

Civil Code 2015 — Article 652 (Inheritance by representation): Where a child of the person leaving the estate predeceases or dies simultaneously with that person, the grandchild shall receive the share that the child would have received had the child survived.

Civil Code 2015 — Article 644 (Heirs entitled regardless of the will’s content):

“1. The following persons are still entitled to a share of the estate equal to two-thirds of the share of a statutory heir if the estate is distributed by law, in cases where they are not given any share of the estate or are given less than two-thirds of such a share by the will-maker: a) Minor children, parents, and spouse; b) Adult children who are incapable of work.”

Law on Marriage and Family 2014 — Article 66 (Settlement of spouses’ property on the death of one spouse):

“1. When one spouse dies or is declared deceased by the court, the surviving spouse manages the common property of the spouses, unless the will designates another person to manage the estate or the heirs agree to appoint another person to manage the estate. 2. When there is a request for partition of the estate, the common property of the spouses is divided equally, unless the spouses have agreed on a property regime. The share of the property belonging to the deceased spouse is divided in accordance with the law on inheritance.”

Analysis and Application

According to lawyer Lê Bình Phương, determining the surviving spouse’s entitlement requires four steps:

Step 1 — Separate common property from personal property:

The entire asset pool of both spouses is classified as:

• Common property (under Article 33 of the Law on Marriage and Family);
• Personal property of the deceased;
• Personal property of the surviving spouse (not part of the estate — not subject to partition).

Step 2 — Identify the estate:

Under Article 612 of the Civil Code:

• The deceased’s personal property = estate;
• The deceased’s share of the common property = estate;
• Total estate = personal property + 50% of common property (under the equal-division principle in Article 66 of the Law on Marriage and Family).

Step 3 — The surviving spouse reclaims their share of the common property:

Before the estate is divided, the surviving spouse takes back 50% of the common property — this is not an inheritance but rather the recognition of the surviving spouse’s existing ownership of their own share in the common property.

Step 4 — Divide the estate by law or by will:

Case A — No will (distribution by law):

The estate is divided equally among the first-rank heirs:

• The surviving spouse;
• The deceased’s biological father and mother (if still alive);
• The deceased’s adoptive father and mother (if any);
• The deceased’s biological and adopted children.

Each share is equal. Example: estate of VND 6 billion, with surviving spouse + father + mother + 2 children = 5 persons → each person receives VND 1.2 billion.

Case B — Will exists:

The will is applied, but Article 644 must be respected — the surviving spouse and the deceased’s parents, minor children, and children incapable of work must each receive at least 2/3 of the statutory share, even if not named in the will.

Example: the deceased leaves a will giving all VND 6 billion to the eldest son. There is: surviving spouse + father + mother + 2 children (eldest son + one other child).

• If distributed by law: each person receives VND 1.2 billion;
• Under Article 644: spouse + father + mother + the other child (if minor or incapable of work) each receive 2/3 × VND 1.2 billion = VND 800 million per person;
• Total amount that must be set aside for persons under Article 644 = VND 800 million × number of persons;
• The eldest son receives the remainder.

Detailed Distribution Structure

Typical Scenario 1 — Couple with 2 children, both deceased’s parents still alive, no will:

Common property: VND 4 billion. Deceased’s personal property: VND 1 billion. Surviving spouse’s personal property: VND 500 million.

• Surviving spouse reclaims: VND 2 billion (50% of common property) + VND 500 million (personal property) = VND 2.5 billion;
• Estate = VND 1 billion (deceased’s personal property) + VND 2 billion (50% of common property) = VND 3 billion;
• First-rank heirs: spouse + deceased’s father + deceased’s mother + 2 children = 5 persons;
• Each share: VND 3 billion ÷ 5 = VND 600 million;
• Surviving spouse’s total: VND 2.5 billion (ownership) + VND 600 million (inheritance) = VND 3.1 billion out of a total of VND 5.5 billion.

Typical Scenario 2 — Couple with no children, deceased’s parents still alive:

Common property: VND 6 billion. No personal property.

• Surviving spouse reclaims: VND 3 billion (50% of common property);
• Estate = VND 3 billion (deceased’s 50% of common property);
• First-rank heirs: spouse + deceased’s father + deceased’s mother = 3 persons;
• Each share: VND 3 billion ÷ 3 = VND 1 billion;
• Surviving spouse’s total: VND 3 billion + VND 1 billion = VND 4 billion out of VND 6 billion.

Typical Scenario 3 — Deceased leaves will giving all assets to the only child; surviving spouse and deceased’s parents still alive:

Common property: VND 8 billion. The deceased wills all of their own assets to their only son.

• Surviving spouse reclaims: VND 4 billion (50% of common property);
• Estate = VND 4 billion (deceased’s 50% of common property);
• Will beneficiary: 1 person (son);
• Persons under Article 644: spouse + deceased’s father + deceased’s mother = 3 persons (if parents are over 60 → deemed incapable of work → all fall under Article 644);
• Statutory distribution: VND 4 billion ÷ 4 persons (spouse + father + mother + son) = VND 1 billion per person;
• Mandatory share for persons under Article 644: 2/3 × VND 1 billion × 3 = VND 2 billion;
• Son receives: VND 4 billion − VND 2 billion = VND 2 billion;
• Surviving spouse’s total: VND 4 billion + VND 666.7 million = VND 4.667 billion.

Important Issue — Step-Children and Mutual Children

Under Article 651 of the Civil Code, “children” includes biological and adopted children. Key distinctions:

• Mutual children of the couple: Inherit from both the deceased father and the deceased mother;
• Children of the deceased from a previous marriage (children with a prior spouse): Inherit from the deceased (their biological parent);
• Children of the surviving spouse from a prior relationship: Do not inherit from the deceased (unless a special caregiving relationship exists under Article 654);
• Adopted children: Inherit on the same basis as biological children if a lawful adoption decision exists.

This is a point that catches many families off guard — the deceased’s children from a previous marriage still have inheritance rights alongside the mutual children of the current couple.

Real-World Situation

Mr T. passed away in 2026. No will. He left:

• Common property with Ms L. (his second wife, married in 2010): a house worth VND 5 billion, savings of VND 800 million;
• Personal property (purchased before the 2010 marriage): rural land worth VND 2 billion;
• Family relationships: father aged 80, mother deceased; 2 children from his first wife (A, an adult with capacity for work; B, aged 17); 1 mutual child with Ms L., C, aged 12.

Legal analysis:

Step 1 — Common and personal property:

• Common property with Ms L.: VND 5.8 billion → Ms L. reclaims VND 2.9 billion (50%);
• Mr T.’s personal property: VND 2 billion → estate;
• Mr T.’s share of the common property: VND 2.9 billion → estate;
• Total estate: VND 4.9 billion.

Step 2 — First-rank heirs:

• Mr T.’s father (age 80): 1 person;
• Ms L. (wife): 1 person;
• A (adult child from first wife, with capacity for work): 1 person;
• B (aged 17, minor): 1 person;
• C (mutual child): 1 person.

Total: 5 persons. Each share: VND 4.9 billion ÷ 5 = VND 980 million per person.

Step 3 — Each person’s entitlement:

• Ms L.: VND 2.9 billion (ownership) + VND 980 million (inheritance) = VND 3.88 billion;
• Mr T.’s father: VND 980 million;
• A: VND 980 million;
• B: VND 980 million;
• C: VND 980 million.

Practical note: Ms L. may be unhappy that her father-in-law also receives VND 980 million — she may feel “I lived with him for 16 years, yet his parents still get a share.” However, this is a clear legal rule — it cannot be disputed.

Ms L. may propose an arrangement with the family: Ms L. cares for her father-in-law until the end of his life, and he commits to leaving his inherited share to C (the mutual child). This approach is lawful and protects C’s interests.

Frequently Asked Questions

When a husband or wife passes away, how much of the estate does the surviving spouse receive? → They reclaim 50% of the common property plus one inheritance share equal to that of every other first-rank heir.

According to lawyer Lê Bình Phương, this is the rule to understand clearly to avoid being caught off guard. The surviving spouse does not automatically receive everything — they must share with the deceased’s parents and children (including children from a previous marriage).

Do the deceased’s parents also receive an inheritance? → Yes. Both biological and adoptive parents fall within the first rank of heirs.

According to lawyer Lê Bình Phương, this is a situation that often causes disputes. In blended families (a second spouse, children from a prior relationship, parents still alive), the number of persons sharing the estate increases — each person’s share decreases accordingly.

Does the surviving spouse have inheritance rights to the deceased’s personal property? → Yes. The deceased’s personal property is part of the estate and is distributed to the first-rank heirs.

According to lawyer Lê Bình Phương, the surviving spouse receives a share equal to that of the children and the deceased’s parents in both the common property and the deceased’s personal property. This right cannot be taken away unless the will excludes them — but even then, Article 644 provides a floor.

Important Notes

To avoid inheritance disputes when you pass away, people with significant assets should make a clear will — especially in blended families (second spouse, children from prior relationships, elderly parents). A will allows you to direct your assets as you wish, but must respect the minimum two-thirds statutory share for persons under Article 644 (spouse, parents, minor children, and children incapable of work).

For the surviving spouse: be aware that you have 30 days from the date your rights arise to register as the estate manager under Article 66 of the Law on Marriage and Family. After that, you need to work with the co-heirs to execute an Estate Partition Agreement. If agreement cannot be reached within 3 years from the time the inheritance opens, you may bring court proceedings to request partition.

Related Articles

• No will — how is a deceased person’s estate distributed?
• Mandatory inheritance share — Article 644
• Can a step-child of a spouse inherit?
• Parents leave a will giving all assets to one child — what do the others receive?
• Inheritance disputes — rules and resolution

Conclusion

The surviving spouse reclaims 50% of the common property and receives one inheritance share equal to that of every other first-rank heir (the deceased’s parents and children). The total amount the surviving spouse receives typically ranges from 50–70% of the total assets, depending on the number of persons in the first rank of heirs. Understanding this structure helps the surviving spouse plan their finances sensibly and avoid bitter disputes with the in-laws. For those who are still alive and have significant assets, making a clear will is the most effective way to direct assets as you wish and to protect your surviving spouse.

See also: Who is Lawyer Lê Bình Phương?