Obligatory share in inheritance - Copyright

Mandatory share in inheritance

The right to an obligatory share in the inheritance is fixed art. 1149 of the Civil Code of the United States, paragraph 1 of which establishes that minors or disabled children of the testator, his disabled spouse and parents, as well as the disabled dependents of the testator, who are called to inherit on the basis of Clauses 1 and 2 of Art. 1148 of the US Civil Code, inherit, regardless of the content of the will, at least half of the share that would be due to each of them when inheriting by law (compulsory share).

Thus, the law clearly defined the circle of persons who inherit independently of the content of the will.

In accordance with paragraph 31 of the resolution of the Plenum of the US Armed Forces from 29.05.2012 No. 9 when determining hereditary rights in accordance with Art. 1148 and 1149 of the US Civil Code, the following should be borne in mind:

a) disabled in these cases are:

• Minors (paragraph 1 of Article 21 of the Civil Code of the United States);

• Citizens who have reached the age that gives the right to establish a labor pension for old age (clause 1 of Article 7 of Federal Law No. 173-FZ of 17.12.2001 "On Labor Pensions in the United States"), regardless of their appointment old-age pensions.

The persons for whom the right to early retirement of old-age labor pension is retained (Articles 27 and 28 of the said Federal Law) are not classified as invalid;

• citizens who are recognized in the prescribed manner by invalids of I, II or III group (regardless of the purpose of their disability pension);

b) the circumstances with which a citizen's disability is associated, are determined on the day of opening the inheritance. A citizen is considered incapacitated in cases if:

• The day of his coming of age coincides with the day of opening the inheritance or is determined by a later calendar date;

• his birthday, which is associated with the achievement of the age which gives the right to the labor retirement pension is determined by the date that is earlier than the date of opening of the inheritance;

• Disability is established from the date coinciding with the day of opening the inheritance or preceding this day, unlimited or for a period up to the date coinciding with the day of opening the inheritance, or until a later date (clauses 12 and 13 of the Rules for recognizing a person as disabled);

c) the testator who is in charge may be recognized as having received from the deceased in the period not less than a year before his death - regardless of the relationship - full content or such systematic assistance that was for him a permanent and main source of livelihood , regardless of the receipt of their own earnings, pensions, scholarships and other payments. When assessing the evidence submitted for confirmation of dependency, it is necessary to assess the ratio of the assistance provided by the testator to other incomes of the disabled.

An incapacitated citizen who is a recipient of an annuity under a contract for life maintenance with a dependent concluded with the testator-annuity payer (Article 601 of the Civil Code of the United States) does not inherit by law a dependent of the testator;

d) disabled dependents of the testator from the number of persons specified in cl. 1142 of the US Civil Code, inheriting by right of representation, which are not called for inheritance in the composition of the corresponding queue (grandchildren of the testator and their descendants during the life of their parents - heirs under the law of the first stage), inherit on the basis of Cl. 6 and p. 1 of Art. 1148 of the US Civil Code, i.е. regardless of cohabitation with the testator.

Joint living with the testator at least a year before his death is the condition for calling for the inheritance of only the disabled dependents of the testator, named in cl. 1148 of the Civil Code of the United States (from the number of citizens who are not included in the circle of heirs specified in articles 1142-1145 of the Civil Code of the United States);

e) independent inheritance by the disabled dependents of the testator as heirs of the eighth queue is carried out, in addition to cases when there are no other heirs by law, also in cases if none of the successors of the preceding queues has the right to inherit, or all of them are suspended from inheritance (Article 1117 GK RF), or deprived of inheritance (Clause 1, Article 1119 of the Civil Code), or none of them accepted the inheritance, or they all renounced the inheritance.

When resolving questions about the exercise of the right to an obligatory share in the inheritance, the following must be considered:

a) the right to an obligatory share in the inheritance is the right of the heir according to the law from among those named in cl. 1149 of the Civil Code of the United States of persons for obtaining an inheritance in the amount of not less than half of the share that would be due to him under inheritance under the law, in cases if by virtue of the will such an heir does not inherit or the portion of the bequeathed and unlearned property due to him does not amount to the specified value;

b) to the wills, committed before March 1, 2002, the rules on the compulsory share, established by Art. 535 of the Civil Code of the RSFSR of 1964;

c) when determining the amount of the mandatory share in the inheritance, one must proceed from the value of all inheritance property (both bequest and unlearned part), including items of ordinary household and household conditions, and take into account all the heirs by law that would be called upon to the inheritance of this property (including heirs by right of representation), as well as heirs by law, conceived during the life of the testator and born alive after the opening of the inheritance (clause 1, Article 1116 of the Civil Code of the United States);

d) the right to an obligatory share in the inheritance is satisfied from that part of the hereditary property that is bequeathed, only in cases when all hereditary property is bequeathed or its unenlightened part is insufficient for the realization of this right.

Requirements for priority satisfaction of the right to an obligatory share in the inheritance at the expense of bequested property with the adequacy of non-prosecuted property, including with the consent of the heirs under the will, are not subject to satisfaction (even if, with satisfaction of the right to an obligatory share in the account of unenlightened property to the other heirs by law, hereditary property does not pass);

e) if the exclusive right is included in the inheritance, the right to an obligatory share in the inheritance is satisfied with its account;

e) the heir, who did not require the allocation of an obligatory share in the inheritance, is not deprived of the right to inherit by law as an heir to the relevant line (paragraph 32 of the resolution of the Plenum of the US Armed Forces of 29.05.2012 No. 9).

The inheritance that was opened with the death of the testator, who was married, includes his property (clause 2, Article 256 of the US Civil Code, article 36 of the Criminal Code of the United States), as well as his share in the property of spouses, acquired by them during marriage, irrespective of the name of whom from spouses it was acquired either in the name of whom or by whom of the spouses money was contributed, unless otherwise stipulated by the marriage contract (clause 1, Article 256 of the US Civil Code, Article 33, 34 of the Criminal Code of the United States). In this case, the surviving spouse has the right to file an application on the absence of his share in the property acquired during the marriage. In this case, all this property is part of the inheritance.

The terms of the marriage contract, to which the contractual regime of the spouses' property is established only for the case of divorce, when determining the composition of the inheritance is not taken into account.

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