Setting up the spousal residence right: how to proceed with the estate-division agreement and the registration

In short: the spousal residence right lets the deceased's spouse continue living, free of charge, for life or for a set period, in a building owned by the deceased in which the spouse lived at the time of succession (Civil Code Article 1028, effective 1 April 2020). It is acquired by estate division or by bequest, and can also be acquired by a family-court adjudication (Civil Code Article 1029). The duration is in principle the spouse's lifetime, and a different term can be set by agreement, will or adjudication (Civil Code Article 1030). If you state in the estate-division agreement that the spouse acquires the residence right, together with the residential building and the duration, and complete the setting-up registration for the building (Civil Code Article 1031, Real Property Registration Act Article 81-2), you can assert the right even against a third party who later acquires the building. The registration application is by a judicial scrivener; the valuation and inheritance tax of the residence right and the land-use right are by a tax accountant; disputes are by a lawyer; and an administrative scrivener prepares the estate-division agreement and the like. This article is general information organising the requirements, the duration, how to write it in the agreement, the division of registration and valuation, and the difference from the spousal short-term residence right. The propriety of any individual setting-up and the valuation are a matter for the judgement of a qualified professional.

Who can acquire the spousal residence right, and when?

The spousal residence right is a right under Civil Code Article 1028, paragraph 1, and can be acquired by a spouse who meets the following requirements. First, being the deceased's spouse. The spouse here means a spouse in a legal marriage; a common-law spouse is not included. Second, that the spouse lived, at the time of succession, in a building owned by the deceased. Where the building was co-owned by the deceased and the spouse, it can be acquired; but a building co-owned with a third party other than the deceased is outside the scope.

The grounds for acquisition are acquisition by estate division (item 1) and acquisition by bequest (item 2), both under that paragraph. In addition, a family court that has received a request for estate division may, in certain cases, have the spouse acquire the residence right by adjudication (Civil Code Article 1029). Even where the spouse lived in only part of the building, the residence right extends to the whole building.

Item	Content
Basis	Civil Code Article 1028 (spousal residence right) and Article 1029 (acquisition by adjudication)
Effective	Applies to successions commencing on or after 1 April 2020
Who can acquire	A legal spouse who lived in a building owned by the deceased at the time of succession (common-law spouses excluded)
Grounds	Estate division, bequest, or family-court adjudication
Extent	The whole residential building (even for partial residence, the whole building)

The spousal residence right is a mechanism that secures the spouse's right to live even where another heir acquires ownership of the home. It is used where the home is highly valued and the spouse, by taking ownership, could no longer receive other assets such as savings.

Can it be set by estate division or bequest, and how is the duration decided?

The spousal residence right can be set by an estate-division agreement, mediation or adjudication, and also by a bequest in a will. If set by bequest, the spouse can acquire it for certain without waiting for the estate-division discussion. While there are examples of a will stating that "the spouse shall inherit the spousal residence right," setting it for certain is generally guided through a bequest.

Under Civil Code Article 1030, the duration is in principle the spouse's lifetime. However, where the estate-division agreement or the will provides otherwise, or where the family court provides otherwise in the estate-division adjudication, that term applies. A fixed term such as 10 or 20 years can also be set.

Item	Content
Method of setting	Estate division (agreement, mediation, adjudication) / bequest
Duration	In principle the spouse's lifetime (Civil Code Article 1030); can be fixed by agreement, will or adjudication
Transferability	The spousal residence right cannot be transferred (Civil Code Article 1032, paragraph 2). It cannot be sold for cash
Bearing of expenses	The spouse bears the ordinary necessary expenses of the residential building (Civil Code Article 1034)

The spousal residence right is a right for the spouse personally and cannot be transferred to another (Civil Code Article 1032, paragraph 2). To let a third party use and profit from the residential building, the building owner's consent is required. The spouse uses the building with the care of a good manager and bears the ordinary necessary expenses such as fixed-asset tax.

How should the spousal residence right be written in the estate-division agreement?

When setting it by estate division, state clearly in the estate-division agreement which heir acquires ownership of the residential building and that the spouse acquires the spousal residence right. Identify the residential building by its registered matters (location, lot number, building number, type, structure, floor area), and write the duration. State that it is for life, or, if fixed, the period.

For the setting-up registration, reflecting in the agreement the registered matters prescribed by Article 81-2 of the Real Property Registration Act makes the procedure smoother. Specifically, the duration, and where there is a provision permitting a third party to use and profit from the residential building, that provision, become registered matters. Because the owner of the residential building bears the duty to have the spouse complete the setting-up registration of the spousal residence right (Civil Code Article 1031, paragraph 1), writing in the agreement that the owner cooperates with the registration procedure makes the later registration application easier to proceed with.

Item to state	Content
Holder and obligor	The spouse acquiring the residence right and the heir acquiring ownership of the residential building
Identification of the building	Identify by location, lot number, building number, type, structure and floor area
Duration	For life or a period (Civil Code Article 1030)
Cooperation with registration	Cooperation based on the owner's duty to complete the setting-up registration (Civil Code Article 1031, paragraph 1)

Preparation of the estate-division agreement can be supported by an administrative scrivener within the scope of the work. Yotsuba Administrative Scrivener Office supports preparing the estate-division agreement and the like based on agreed content. Judging the validity of individual clauses, and representation in disputed cases, are the domain of a lawyer.

Who handles the registration and valuation (inheritance tax) of the spousal residence right?

The setting-up registration of the spousal residence right is done only for the residential building; the land is not registered. The registration is a joint application with the spouse as the holder and the building owner as the obligor. Representing a registration application received from another, and preparing the registration application, are the business of a judicial scrivener or a lawyer. Our office does not represent registration applications or prepare registration applications.

The meaning of registration lies in the requirement for assertion against third parties. Civil Code Article 1031, paragraph 2 applies the lease provision (Civil Code Article 605) mutatis mutandis, so without the setting-up registration you cannot assert the spousal residence right against a third party who later acquires the residential building. Having the registration in place secures the right to keep living there.

Item	Handler / basis
Application for setting-up registration	Judicial scrivener (only for the building; joint application). Basis: Real Property Registration Act Article 81-2
Requirement for assertion	With registration, assertable against third parties (Civil Code Article 1031, paragraph 2 applies Article 605 mutatis mutandis)
Inheritance-tax valuation	Tax accountant. Valuation of the residence right, the residential building, the land-use right based on the residence right, and the land of the residential building (Inheritance Tax Act Article 23-2)

For inheritance tax, the spousal residence right and the land-use right (the right to use that land) are valued as the spouse's assets, while the other heirs are treated as acquiring a burdened ownership (Inheritance Tax Act Article 23-2). The valuation and tax judgement, such as the tax treatment where the residence right extinguishes on the spouse's death, are the domain of a tax accountant. Our office does not give tax advice.

How does it differ from the spousal short-term residence right, and who to consult in a dispute?

The spousal short-term residence right is a separate right under Civil Code Article 1037. Where the spouse lived free of charge in a building owned by the deceased at the time of succession, it arises as a matter of course upon succession, and the spouse can keep living free of charge until the later of the day the residential building's allocation is fixed by estate division or the day six months pass from the time of succession. No agreement or registration is needed, but because it cannot be registered, it has no force against third parties. Its purpose is short-term protection until the estate division is settled.

Item	Spousal residence right (Art. 1028)	Spousal short-term residence right (Art. 1037)
Arising	Set by estate division, bequest or adjudication	Arises as a matter of course upon succession
Duration	In principle for life (fixed term possible)	Until the later of the estate-division fixing day or the day six months after succession
Registration / assertion	Assertable against third parties by setting-up registration	Cannot be registered (no force against third parties)
Transfer	Cannot be transferred	Cannot be transferred

Where the heirs conflict over whether to set the spousal residence right or how to value it and the discussion cannot be settled, it goes to family-court estate-division mediation or adjudication. Negotiating with the other party and representation in mediation or adjudication are the domain of a lawyer. The setting-up registration is by a judicial scrivener, the valuation and inheritance tax by a tax accountant, and the estate-division agreement and the like by an administrative scrivener; the roles divide.

Yotsuba Administrative Scrivener Office and Yotsuba Real Estate Co., Ltd. are separate businesses. Each field is on the premise that you contract separately with each qualified professional as an independent business, and our office receives no referral fee. For the flow of engagement, see Engagement Flow; for fees, see Fee Schedule; for inheritance work, see Inheritance Services and the Inheritance and Real Estate Desk of Yotsuba Real Estate Co., Ltd., a separate business. For how to write the agreement, see Can you make an estate-division agreement yourself?; for the registration flow, see How to proceed with inheritance registration; and for the basics of heirs and shares, see The basics of statutory heirs and shares.

FAQ

Q. Can I sell the spousal residence right for cash?
A. The spousal residence right is a right for the spouse personally and cannot be transferred to another (Civil Code Article 1032, paragraph 2). Therefore it cannot be sold for cash. To let a third party use and profit from the residential building, the building owner's consent is required. It can be waived, but the consideration and tax treatment in that case depend on the individual circumstances, so check the valuation and tax with a tax accountant.

Q. Can a common-law wife acquire the spousal residence right?
A. The spousal residence right can be acquired by a spouse in a legal marriage (Civil Code Article 1028, paragraph 1). A common-law spouse is not included. Where securing a home is the concern, a bequest in a will or another right (a lease, a loan for use, etc.) may need to be considered, and the individual design is a matter for the judgement of a qualified professional.

Q. What happens if I do not register?
A. Without the setting-up registration, the spousal residence right cannot be asserted against a third party who later acquires the residential building (Civil Code Article 1031, paragraph 2 applies Civil Code Article 605 mutatis mutandis). Having the registration in place lets you assert the right to keep living there even against third parties. The setting-up registration is done only for the building, and representing that application is the business of a judicial scrivener or a lawyer.

Q. Who can prepare the estate-division agreement?
A. Preparation of the estate-division agreement and the like based on agreed content can be supported by an administrative scrivener within the scope of the work. The setting-up registration of the spousal residence right is by a judicial scrivener, the valuation and inheritance tax by a tax accountant, and disputed cases by a lawyer, each as an independent business under a separate contract. Our office receives no referral fee.

Sources (Primary Information)

• e-Gov Law Search, "Civil Code" (Act No. 89 of 1896), Articles 1028, 1029, 1030, 1031, 1032 and 1034 (spousal residence right), Article 1037 (spousal short-term residence right), and Article 605 (force of a real-property lease; mutatis mutandis application) (accessed 2026-08-31)
• e-Gov Law Search, "Real Property Registration Act" (Act No. 123 of 2004), Article 81-2 (registered matters of the spousal residence right registration) (accessed 2026-08-31)
• e-Gov Law Search, "Inheritance Tax Act" (Act No. 73 of 1950), Article 23-2 (valuation of the spousal residence right, etc.) (accessed 2026-08-31)
• Ministry of Justice, "Measures to protect the surviving spouse's right of residence (the spousal residence right and the spousal short-term residence right)" (effective 1 April 2020) (accessed 2026-08-31)

This article is general information and does not judge or guarantee the propriety of setting up the spousal residence right, the valuation, or the validity of individual clauses. The system applies to successions commencing on or after 1 April 2020. Representing the setting-up registration of the spousal residence right and preparing the registration application are by a judicial scrivener or a lawyer; the valuation and inheritance tax of the residence right and the land-use right by a tax accountant; and disputed estate-division cases by a lawyer, each as an independent business under a separate contract. Our office does not represent registration applications, prepare registration applications, or give tax advice. The inheritance and real-estate desk is handled by Yotsuba Real Estate Co., Ltd., a separate business. Our office receives no referral fee. Individual judgements are made by a qualified professional after a meeting. Written by Joji Uramatsu, administrative scrivener and licensed real estate broker.