Mandatory share in the inheritance by will and by law

Russian legislation protects certain categories of Russians when distributing inheritance. Such persons are entitled to a mandatory share in the inheritance in a will, even when their names are not included in the testamentary disposition. Read all about the mandatory share in this article.

Inheritance: basic rules

An inheritance can be transferred in two ways: by testamentary disposition and by law. In the first case, the property is distributed according to an official document that was personally drawn up by the testator and certified by a notary.

Division of inheritance according to the law occurs when there is no will or it does not cover the entire capital of the deceased. In this situation, objects of inheritance are divided among relatives according to the order prescribed in legislative acts.

The primary right to the capital of the deceased belongs to his closest relatives - father, mother, wife, husband, son, daughter. The second line includes parents, mom and dad. Sisters and brothers are also included in this category. They can be either full-born or half-born. Then come the aunts and uncles. All other relatives belong to the fourth and subsequent steps.

The second category can count on inheritance only if representatives of the first category are absent

If at least one close person from the first stage is alive, he will receive all the property of the testator. Representatives of the third stage will receive an inheritance only if relatives of the first and second stages are absent.

There is also such a thing as “heirs by appointment.” Let's give an example. If the testator's children are not alive, their children, that is, the granddaughters and grandchildren of the deceased owner of the property, will receive the inheritance for them.

On a note! Not only the property of the deceased is distributed among the heirs, but also his obligations to creditors. They must also bear all costs associated with the operation and maintenance of the property.

Mandatory share - what is it?

A mandatory share is a piece of inherited property, which in any case must be transferred to the categories of citizens established by law. Used in two cases:

• the deceased stated his last will in the will, but for one reason or another did not include compulsory heirs in it;
• the heir appears in the testamentary disposition, but the size of his portion is too small.

The concept of “obligatory share” is used only if a testamentary disposition has been written

If the last will of the deceased has not been formalized legally, the concept of compulsory share is not used. In this case, the inheritance is divided according to priority.

Who is the obligatory heir?

The mandatory share is allocated to persons who, due to their young age or health conditions, are unable to work and support themselves financially. These include:

1. Sons and daughters of the deceased who were under eighteen years of age at the date of his death. These can be either natural children or adopted children.
2. Sons and daughters of the deceased who have the status of incompetent or incapacitated for health reasons. Age does not matter in this case.
3. A father or mother who is declared incompetent or incapacitated. This category also includes retired or disabled parents. The father or mother can be both natural and adoptive parents.
4. A husband or wife recognized as incompetent or incapable of work (spouse of retirement age or disabled).
5. Persons who were dependent on the testator at the time of his death.

On a note! The mandatory share is allocated only to those who are permanently incapacitated for at least one year. For example, if the wife of the deceased is pregnant, she cannot claim a mandatory share of the inheritance. But his natural child, who was in the womb of his wife at the time of the testator’s death, will be considered an obligatory heir.

If the dependent heirs are not legal heirs, i.e. do not belong to any of the lines of inheritance, they receive a compulsory share only on the condition that they lived in the same territory as the testator for at least one year before his death.

The obligatory share cannot be transferred to the heir by proposal

Share size

To correctly calculate the share of each compulsory heir, you need to know:

• what the deceased owned;
• the value of each property separately;
• number of heirs.

To calculate, follow this algorithm:

1. Imagine that the deceased did not formalize his last will.
2. Find out who is legally entitled to receive an inheritance.
3. Divide the deceased's property among the heirs.
4. Identify the legal share of the obligatory heir.
5. Divide the resulting amount by half. This will be the obligatory share.

On a note! The obligatory share is equal to half the share that the incapacitated or disabled heir would have received if the deceased had not left a testamentary disposition.

Let's give an example. The late Ivanov left two children, one of whom is a newborn. The father made a will in which he ordered that his house be given to his eldest son. The newborn was not specified in this will. Let's calculate the share of each child.

If the testator had not left a will, the house would have been divided equally between the two children, i.e. everyone would get ½. But since the second child turned out to be unaccounted for, he will only be given his obligatory share, which is ¼ of the house.

This means that the eldest son received 3⁄4 of the house, and the youngest - 1⁄4.

Table 1. Allocation of shares in the presence of a will

The rights of obligatory heirs are respected. The share specified in the will is not less than that which is due to the heir by law.	The recipient receives the inheritance according to the testamentary disposition.
The part of the property indicated by the deceased is less than required.	The share of the obligatory heir increases.
The obligatory heir is not included in the will.	His share is allocated by reducing the share of other heirs.

On a note! There are situations when the deceased did not indicate all of his property in the will. Then the share of the obligatory heir is formed first from unrecorded property. If this is not enough, the rest comes from the share of other heirs.

Is it possible to refuse the obligatory share and how to do it?

All adult heirs, including mandatory heirs, have the right to refuse inherited property. It won't be difficult to do this. It is enough to go to the notary who keeps the will of the deceased and write a refusal on paper. After this, all rights to receive the inheritance will be lost.

The heir has every right to refuse to accept the inheritance

On a note! An heir may renounce inherited property that is unnecessary to him only in favor of the persons specified in the testamentary disposition. You cannot refuse inheritance in favor of people who were not listed by the deceased. It is also prohibited to refuse only part of the inheritance. You can only write a complete refusal.

Rejecting a child's inheritance share is difficult, but possible. This will require permission from the guardianship service. It should be noted that obtaining such permission requires considerable effort.

We will have to convince officials that giving up property will not negatively affect the financial situation of the children and will in no way violate their rights.

This is a long and laborious task, especially when it comes to residential real estate.

Step-by-step guide to obtaining a mandatory share of the inheritance

To receive a mandatory share of the inheritance, follow these instructions:

1. Within six months after the death of the testator, the “obligatory” heir should come to the notary office where the will of the deceased is kept. Most likely, it is located at the place of residence of the deceased.
2. Give the notary a package of documents, which includes: your passport, confirmation of relationship with the deceased, confirmation of the right to an obligatory share of the inheritance (pensioner’s certificate, disability certificate, court order, etc.) Also, if any, present documents for the property that should be passed on by inheritance.
3. The notary issues a certificate to the heir. It serves as evidence of the right to receive part of the property that was left behind by a deceased relative.

The share is less than expected - what to do?

It often happens that a disabled or incompetent legal successor is indicated in the testamentary document, but his share is underestimated. This state of affairs is contrary to the law. With the help of a will, it is impossible to reduce the size of the share of the obligatory legal successor; you can only indicate exactly what part of the property, rights and obligations the incapacitated/disabled heir should receive.

To restore justice, you need to contact the notary who is involved in this matter and write a corresponding statement.

In what cases can the parents of the deceased count on a mandatory share?

The parents of the deceased can receive an obligatory share of the inheritance after their son/daughter in two cases:

1. They are old age pensioners. The mother can receive a share upon reaching fifty-five years of age, and the father upon reaching sixty years of age.
2. The parent has one of three categories of disability.

On a note! A parent who has received pensioner status but has not reached retirement age will not be able to become a mandatory legal successor.

Some parents over sixty try to get more by presenting disability documents. Such actions will not bring results.

If the parents of the deceased were deprived of parental rights by a court order, they will not be able to receive even a small part of the property. In this case, the legal successors of the deceased will be his adoptive parents, if there were any.

Can a spouse receive an inheritance if he is not specified in the will?

The general rule applies here. The legal spouse can count on an obligatory share of the property, rights and obligations of the deceased only if he has an official disability of one of three groups or is an old-age pensioner.

Children of the testator

Part of the material assets is certainly allocated to the children of the deceased who have not yet reached the age of eighteen. This group includes both natural sons or daughters and adopted ones. Also, a piece of the inheritance will go to the baby, who was born after the death of his father.

Even if a minor child already earns income, is employed or is engaged in business, he will still receive a portion of the property left by his father or mother.

Deprivation of compulsory share

Only the court can decide whether to deprive the heir of his obligatory share or not. Also, only a judge can reduce a piece of the mandatory legal successor, but for this it is important to indicate compelling justifications (Article 1149 of the Civil Code of the Russian Federation).

An applicant for a compulsory inheritance may not receive the property of the testator for various reasons:

1. A person has never been the obligatory legal successor of the testator. For example, a citizen falsified disability documents.
2. The heir has committed a serious offense against the testator or other heirs. Justice recognizes such persons as “unworthy” heirs. They will not be able to receive anything from the deceased's property.
3. He tried to take a larger piece of the inheritance through illegal methods.

Here are some more reasons for depriving your share:

1. The candidate for the share never maintained a relationship with the testator. A judge may consider this basis sufficient only if the obligatory heir has where and what to live on.
2. The capital of the deceased is the only material support for the citizen mentioned in the testamentary disposition. And he will never be able to find another way to make money.

The people named in the testamentary disposition may have other valid reasons for preventing the deceased's property from being transferred to the rightful beneficiary. All cases are considered individually, all circumstances are taken into account.

When considering such cases, the court pays attention to the financial situation of each party.

Deprivation procedure

While the procedure for the initial registration of inheritance is being carried out, the interested individual applies to the judicial authority. The request must be supported by strong evidence and documents. It is necessary to convince the court that the obligatory share cannot under any circumstances be transferred to that person.

Please note that the application is written according to the sample, according to the rules, with the signatures of all applicants. Otherwise, the case may be refused.

Mandatory share in the inheritance by will and by law

Inheritance law is one of the complex branches of law. There are many reasons for this, but they are mainly related to the fact that, along with legal nuances, there is a human factor.

Most often it manifests itself in matters of distribution of inheritance shares, when each heir considers himself the rightful owner of the deceased’s inheritance. In this regard, it can be difficult to determine who is truly the legal heir and who does not have inheritance rights.

The article below will talk about such a hereditary issue as a mandatory share in the inheritance under a will and the law - in what cases does it happen, who has the right to it, and so on.

Inheritance rules

Inheritance according to a will is the transfer of inheritance rights and property in accordance with the will drawn up by the testator.

Inheritance according to law - distribution of inheritance between heirs in accordance with the provisions of the Law. Occurs if there is no will or if the will distributes only part of the property. The following categories of heirs relative to the testator are distinguished:

• Category 1 - parents, children, spouses
• Category 2 - grandparents, brothers and sisters (full or not)
• Category 3 - uncles and aunts
• 4th category and beyond - heirs of subsequent degrees of kinship

These categories mean that only in the absence of heirs of the previous categories, subsequent heirs have the right to inherit.

The Civil Code of the Russian Federation establishes the right of representation - the transfer of the inheritance rights of the testator to descendants if the testator died together with the testator or before the opening of the inheritance. The heirs according to the right of representation are:

• grandchildren - for heirs of the 1st category
• nephews and nieces - category 2
• cousins ​​- category 3

Regardless of the order of inheritance, there is a special category of persons who have an obligatory share.

An obligatory share in an inheritance by law is a part of the inheritance that is due to certain heirs, regardless of the presence of a will and other heirs.

List of compulsory heirs

Legislation primarily protects the rights of the testator’s minor children, and therefore establishes the presence of a mandatory share of the minor in the inheritance . The board of trustees plays a major role in monitoring the management of a minor’s inheritance, since it is the board that monitors compliance with the rights and interests of the minor. Thus, the board of trustees controls that the inheritance of a minor is not alienated by parents or guardians, is not changed downward, etc.

In this case, the inheritance of a minor is managed by the parents or persons replacing them (guardians), but the child will be able to use the inheritance until the age of majority if he receives the permission of the parents (guardians).

Also, disabled relatives - children, spouses, parents, dependents - have the right to a compulsory share.

For dependents, several conditions are required:

• being fully supported by the deceased for a year or more
• disability

Mandatory share size

When calculating the share, you need to know the rules for distributing inheritance in order of priority. The inheritance is divided among heirs of the same category (rank) in equal shares.

The volume of the obligatory inheritance mass (share) must be half (or more) of the share that would be due to this heir, taking into account the inheritance of the remaining heirs.

The obligatory share is allocated from the inheritance that is not included in the will.

When the allocated amount does not meet the established standards, part of the obligatory share is allocated from the testamentary estate (the inheritance specified by the testator).

Obligatory heirs must go through the same inheritance procedure as other persons (submission of notarial documents, verification, registration of inheritance, litigation, if necessary). Also, heirs of compulsory shares are obliged to fulfill the duties provided for by inheritance legislation regarding the maintenance of the inheritance, etc.

Change of shares

1. The Civil Code establishes that if the heir under the will used the inherited property (for example, lived in the house, used tools), and the heir to the compulsory share did not use this property, it is possible to reduce the size of the compulsory share in favor of the heir specified in the heir's will or to refuse the compulsory share. hereditary share completely.
2. Also, the reason for reducing the mandatory share may be factors such as lack of contact with the testator, if this was required for the testator (for example, a serious or incurable illness), bad relationship with the testator (this factor is quite subjective, but the courts use it with proper evidence).
3. Also, persons who, according to the Law, do not have the right to inheritance as a whole, are not entitled to an obligatory share.

Nuances

It is possible that the heir to the obligatory share simultaneously acts as an heir under the will. The size of the inheritance does not add up, the only condition is that it should not be below the level of the mandatory share.

The testator, as stated, cannot reduce the obligatory share by will. It is possible to indicate in a will certain property that may belong to the heirs as an obligatory share.

All heirs have the right to refuse inheritance. The difference in refusal between the remaining testators is that only a complete refusal is possible; there is no right to refuse the inheritance in favor of another person (heir).

When inheriting compulsory shares, the right of representation is invalid.

Family law provides for the right to marry a minor, but the Civil Code does not take into account such persons as heirs of a compulsory share, although legally they are equated to minor children of the deceased testator.

Conclusion

A mandatory share is a legal mechanism for protecting the inheritance rights of minors and disabled relatives of the testator, regardless of the will or the presence of other testators.

Mandatory share in the inheritance in the presence of a will. Concept, size and calculation of share

The testator has the right to freely dispose of his property. At the same time, the law simultaneously establishes a rule on limiting the freedom of will, according to which it is impossible to deprive the inheritance of the disabled heirs closest to the testator by law.

The latter are usually called necessary heirs, and the share they receive is an obligatory share.

Similar rules on the obligatory share in the inheritance (portio debita) are available in almost all legal systems; rules on the status of necessary heirs were contained in Roman law.

1. The concept of a mandatory share in an inheritance

An obligatory share in an inheritance is a share of the inherited property that is due to a certain group of people if a will is drawn up.

Mandatory share in inheritance , in essence, is a restriction on the disposal of all one’s property, designed to protect the rights of a certain category of citizens. That is, the obligatory share is inherited regardless of the contents of the will.

The essence of the rules of the Civil Code of the Russian Federation on the obligatory share in the inheritance is that there is a category of persons (necessary heirs) who inherit regardless of the will of the testator in any of three cases:

• if they are disinherited;
  2 if all property is bequeathed to other persons;
•  if the part of the bequeathed and intestate property due to them is less than the obligatory share.

2. Persons entitled to a mandatory share

According to paragraph 1 of Art. 1149 of the Civil Code of the Russian Federation, the following have the right to an obligatory share in the inheritance:

• minor children of the testator;
• disabled children of the testator (natural and adopted);
• disabled spouse of the testator (relatives and adopted children);
• disabled parents of the testator (adoptive parents);
• disabled dependents of the testator; two categories of dependents (Article 1148 of the Civil Code of the Russian Federation):

- the first - heirs by law who were disabled on the day of the death of the deceased and were dependent on him for at least a year before his death, regardless of the fact of cohabitation with the deceased testator;
- second - dependents who are not included in the circle of heirs by law, but were disabled by the day of the citizen’s death, were dependent on him for at least one year before his death and lived together with him.

Disabled persons include minor citizens, citizens who have reached retirement age or are recognized as disabled people of groups I, II or III (regardless of whether they have been assigned an old-age or disability pension) (Art.

1148, paragraph 1, art. 1149 Civil Code of the Russian Federation; pp. “a”, “c” clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9).

At the same time, persons who retired on preferential terms (due to difficult working conditions) are not included in the circle of heirs as disabled.

These categories of heirs have the right to an obligatory share in the inheritance if they do not inherit by will, and also if the part of the willed and intestate property due to them is less than half the share that they would receive if inherited by law (clause 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases”).

3. Responsibilities of heirs entitled to an obligatory share in the inheritance

Heirs entitled to an obligatory share must fulfill the duties common to all those who accepted the inheritance. Thus, within the limits of the value of the inherited property, they reimburse expenses caused by the death of the testator, expenses for protecting the inheritance and managing it, and are also responsible for the debts of the testator (Articles 1174, 1175 of the Civil Code of the Russian Federation).

4. The size of the obligatory share in the inheritance

If the will was made on March 1, 2002 or later, the rules of Art. 1149 of the current Civil Code of the Russian Federation, according to which the obligatory share in the inheritance is at least half of what the heir could receive by inheriting by law. The shares of the heirs under the will are reduced by allocating a mandatory share in proportion to the shares due to the heirs under the will.

If the will was made before March 1, 2002, the circle of compulsory heirs and the size of the compulsory share are determined according to the rules of Art.

535 of the Civil Code of the RSFSR of 1964, according to which “minor or disabled children of the testator (including adopted ones), as well as disabled spouses, parents (adoptive parents) and dependents of the deceased inherit, regardless of the contents of the will, at least two-thirds of the share that would have been due each of them upon inheritance by law (obligatory share).”

Thus, compared to the previously effective legislation, the size of the mandatory share decreased slightly from 2/3 to ½ share. We believe that the reduction in the size of the obligatory share is associated with the expansion of the principle of freedom of will.

5. Determination of the size of the obligatory share in the inheritance. Example of share calculation

Initially, the legal share of the heir should be determined in “ideal” terms.

For these purposes, it is necessary to take into account all heirs at law who are alive on the day of opening of the inheritance, who would be called to inherit the property (including heirs by right of representation), as well as heirs at law who were conceived during the life of the testator and born alive after opening inheritance (clause 1 of article 1116 of the Civil Code of the Russian Federation).

Thus, it is necessary to know the full range of legal heirs who, in the absence of a will, would be called upon to inherit.

Calculation of the obligatory share in the inheritance. Example. The testator, Peter Ivanov, left an apartment in his will in favor of one of his two sons, Nikolai.

At the time of the testator’s death, his second son, Vasily, was disabled, which means he had the right to an obligatory share in the inheritance.

Since according to Art. 1149 of the Civil Code of the Russian Federation, the obligatory share in the inheritance is no less than ½ of what the heir could receive during inheritance by law; the disabled Vasily has the right to receive ½ share of his half of the inheritance. Thus, Vasily’s share will be ¼ share of the inherited property, i.e., in this case, ¼ share of the right to the apartment. Nikolay's share is ¾.

1. When determining the size of the obligatory share in the inheritance, one should take into account the value of all inherited property (both in the bequeathed and intestate part), including items of ordinary home furnishings and household items.
2. The obligatory share includes everything that the heir entitled to it receives from the inheritance for any reason, including the cost of the testamentary disclaimer established in favor of such heir.
3. The obligatory share is allocated from that part of the inheritance property that is bequeathed only if all of the inherited property is bequeathed or its unbequeathed part is insufficient to exercise the right to the obligatory share.
4. In other words, when dividing an inheritance, the right to an obligatory share is satisfied from:
5. - property that was not willed and must pass to the heirs by law;
6. - property that was bequeathed (if the untested property is not enough to satisfy the requirement of the obligatory heir).

Example. The value of the inherited property is 1 million rubles (a car worth 750 thousand rubles and cash in the amount of 250 thousand rubles). After the death of the testator, his two sons, Peter and Nikolai, have the right to inherit.

The testator left a will, according to which the car is transferred to Nikolai; the funds are not bequeathed to anyone. Peter is an obligatory heir due to disability, therefore he has the right to half of the property that he would receive if he were an heir by law - his share will be ¼.

Peter has the right to satisfy the right to the specified share from property that was not willed, i.e. from funds, the size of which exactly corresponds to his share - 250 thousand rubles.

If, in this example, the inherited property did not include money, then the testator’s son Peter would have the right to claim a share in the bequeathed property - a car, which would be subject to division taking into account the rules on the priority right to inherited property (see below ).

6. Challenging the rights of the necessary heir

The exercise of the right to an obligatory share does not depend on the consent of other heirs. At the same time, other heirs have the right to challenge the rights of the necessary heir to the inheritance.

If the heirs under the will object to the issuance of a certificate of the right to an obligatory share in the inheritance, the notary explains that the dispute that has arisen is resolved in court and the decision on the issue of issuing a certificate of the right to inheritance may be postponed in the manner prescribed by Art. 41 Fundamentals of the legislation of the Russian Federation on notaries (clause 31 of Chapter 3 of the Methodological Recommendations for Registration of Inheritance Rights, approved by the decision of the FNP Board dated 02/27–28/2007).

7. Reducing the size of the obligatory share in the inheritance or refusing to award it

Clause 4 of Article 1149 of the Civil Code of the Russian Federation contains provisions on the right of the court to reduce the size of the obligatory share in the inheritance or completely refuse to award it.

The court may reduce the size of the obligatory share or refuse to award it only if the following conditions are met:

1. the exercise of the right to an obligatory share in the inheritance will entail the impossibility of transferring the bequeathed property to the heir under the will;
2. the heir entitled to the obligatory share did not use the specified bequeathed property during the life of the testator;
3. the heir under the will used the specified bequeathed property for living (a residential building, apartment, other residential premises, dacha, etc.) or used it as the main source of livelihood (tools, creative workshop, etc.).

It should be noted that the law provides for the possibility of reducing the mandatory share, but not increasing it.

8. Waiver of the obligatory share in the inheritance

The obligatory share in the inheritance can be waived, but renunciation in favor of another heir is unacceptable. Such a refusal will increase the share that the heir will receive under the will (Article 1157, paragraph 1 of Article 1158 of the Civil Code of the Russian Federation).

In paragraph 30 of Chapter 3 of the Methodological Recommendations for Registration of Inheritance Rights,” approved. The decision of the FNP Board dated February 27 - 28, 2007 contains the following clarifications:

“An heir who has the right to an obligatory share in the inheritance has the right to refuse to receive a certificate of the right to an obligatory share in the inheritance. In this case, he submits an application to the notary that he is familiar with the contents of the will, his right to an obligatory share in the inheritance has been explained to him, but he does not claim to receive an obligatory share.

He also has the right to ask to be issued a certificate of the right to an obligatory share in the inheritance in a smaller amount than the share due to him provided by law.

Such applications from legal representatives of minors, incapacitated or partially capable obligatory heirs can be accepted only with the consent of the guardianship and trusteeship authorities (Article 37 of the Civil Code of the Russian Federation).

If a compulsory heir refuses to receive a certificate of the right to an obligatory share in the inheritance or when receiving a certificate of a compulsory share in the inheritance in a smaller amount, he has the right to receive a certificate of the right to inheritance on other grounds.”

9. Inheritance fund and obligatory share in the inheritance

According to previous legislation, the right to an obligatory share had to be exercised in all cases, regardless of the type of will.

On September 1, 2018, the norms of the legislation on the inheritance fund come into force, Article 1149 of the Civil Code of the Russian Federation was supplemented with clause 5. Now the heir has the right to choose: either become a beneficiary and renounce the obligatory share in the inheritance, or renounce the rights of the beneficiary of the inheritance fund and receive obligatory share.

From this date, the inheritance fund becomes an equal heir along with the heirs of the citizen (both by will and by law).

If such an heir, within the period established for accepting the inheritance, declares to the notary leading the inheritance case that he renounces all rights as a beneficiary of the inheritance fund, he has the right to an obligatory share in accordance with this article.

If the heir renounces the rights of a beneficiary of the inheritance fund, the court may reduce the size of the compulsory share of this heir if the value of the property due to him as a result of the inheritance significantly exceeds the amount of funds necessary for the maintenance of the citizen, taking into account his reasonable needs and available to him on the date of opening of the inheritance obligations to third parties, as well as the average amount of expenses and standard of living before the death of the testator.

We recommend the publication: “An inheritance fund is... Creation and management of an inheritance fund”

10. When the right to an obligatory share in the inheritance does not arise

The following persons do not have the right to an obligatory share in the inheritance:

Adopted . Children adopted during the lifetime of this parent do not have the right to inherit the property of a parent (and his relatives), since upon adoption they lost personal and property rights in relation to him (clause 2 of Article 137 of the RF IC), except for the cases specified in clause. 4 tbsp.

137 of the RF IC, providing for the possibility of maintaining legal relations with one of the parents in the event of the death of the other or with the relatives of the deceased parent at their request, if the adoptive parent does not object to this. If the adoption took place after the death of the testator parent, the adopted children do not lose the right to inherit.. (clause

42 of Chapter 4 “Methodological recommendations for registration of inheritance rights”, approved. By decision of the FNP Board dated 27-28.02.2007).

Other heirs . The right to an obligatory share cannot be transferred at the will of the required heir by way of refusal in favor of another heir (clause 1 of Article 1158 of the Civil Code).

Heirs by transmission . The right of an heir to accept part of the inheritance as a compulsory share does not pass to his heirs by way of hereditary transmission;

Heirs by right of representation . The grandchildren and great-grandchildren of the testator, whose parents died before the opening of the inheritance, as well as second-degree heirs, do not have the right to an obligatory share, except in cases where these persons were dependent on the deceased;

Unworthy heirs . Rules for declaring an heir unworthy in accordance with Art. 1117 of the Civil Code of the Russian Federation applies to heirs who have the right to an obligatory share in the inheritance.

What is a mandatory share in an inheritance: according to the law of the Civil Code of the Russian Federation, who has the right in a will

The right to a compulsory share is available to minor children of a deceased citizen, as well as to his disabled children, parents and spouse.

Not only relatives, but also adopted minors and disabled children can apply for a compulsory inheritance share.

Disabled adoptive parents of a deceased citizen can also count on receiving a mandatory share in the inheritance (clause 1 of Article 1149 of the Civil Code of the Russian Federation).

But in addition to these persons, disabled citizens who were dependent on the deceased also have the right to a compulsory share. Two categories of dependents can claim a compulsory inheritance share. The first is the heirs by law who were disabled on the day of the death of the deceased and were dependent on him for at least a year before his death.

Moreover, their place of residence does not matter for inheritance - they could live together with the deceased citizen or not.

The second is dependents who are not included in the circle of heirs by law and are not related to the deceased, but were disabled by the day of the citizen’s death, were dependent on him for at least one year before the death of the testator and lived together with him (Article 1148 of the Civil Code of the Russian Federation ).

To determine inheritance rights, the law classifies as disabled:

• minors;
• women over 55 years old and men over 60 years old;
• citizens recognized as disabled people of groups I, II or III (regardless of the assignment of a disability pension to them).

Despite changes in legislation that increased the retirement age, people of pre-retirement age retained the rights and benefits that they could have counted on under the previous provisions of the law. Therefore, the age of incapacity for determining rights to the compulsory share remains the same.

In accordance with paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9, minors or disabled children, parents, spouses or dependents have the right to an obligatory share in the inheritance if they do not inherit by will, and also if the part of the inheritance due to them property is less than half the share that they would receive if inherited by law.

Heirs entitled to an obligatory share must fulfill the duties common to all those who accepted the inheritance. This means that they reimburse expenses caused by the death of the testator, expenses for protecting the inheritance and managing it, and are also liable for the debts of the testator within the limits of the value of the inherited property due to them (Articles 1174, 1175 of the Civil Code of the Russian Federation).

In this case, he will have to choose between inheriting the obligatory share and receiving profit from the inheritance fund. He must make this choice within the period established for accepting the inheritance.

If during this time such an heir does not declare to the notary leading the inheritance case that he renounces all rights as a beneficiary of the inheritance fund, he automatically loses the right to an obligatory share (clause 5 of Article 1149 of the Civil Code of the Russian Federation).

The size of the obligatory share in the inheritance

As a general rule, the obligatory share in the inheritance is at least half of what the heir could receive during inheritance by law (Clause 1 of Article 1149 of the Civil Code of the Russian Federation).

Therefore, in order to calculate the obligatory share of the inheritance under a will, you first need to establish the legal share of the heir, which he would have received if there had been no will.

To do this, it is necessary to take into account all heirs at law who are alive on the day of opening of the inheritance, who would be called to inherit property, including heirs by right of representation, as well as heirs at law who were conceived during the life of the testator and were born alive after the opening of the inheritance ( Clause 1 of Article 1116 of the Civil Code of the Russian Federation).

It turns out that the main task for determining the obligatory share will be to establish the full circle of heirs by law, who, in the absence of a will, would be called upon to inherit.

The calculation will look something like this:

• all inherited property is taken, regardless of whether it is bequeathed or not, including household furnishings and household items;
• the share due to such an heir is calculated if the inheritance took place according to law and not according to a will;
• half of what is received is allocated.

For example, a mother bequeathed an apartment to her son, but at the time of her death her husband was 64 years old, which means he was disabled.

Let us assume that no other property was included in the inheritance mass, and the apartment was acquired before marriage and was in the sole possession of the mother.

As a general rule, the obligatory inheritance share should be allocated from the property that remains untested. If there was no such property or it turned out to be insufficient, then the share is allocated from the bequeathed part (Clause 2 of Article 1149 of the Civil Code of the Russian Federation).

How to confirm the right to a compulsory inheritance share

Having understood how the size of the obligatory share in the inheritance is determined, you should also establish an algorithm for confirming the right to the obligatory share. Indeed, in most cases, such an heir must prove that he was dependent on the deceased. The fact that a person is a dependent is established by the court (clause 2, part 2, article 264 of the Code of Civil Procedure of the Russian Federation).

The step-by-step mechanism will be like this:

Step 1. Determine whether the applicant is among the dependents entitled to receive the inheritance

For the purpose of receiving an inheritance, a dependent is recognized as a person who, for a period of at least one year before the death of the deceased, received from him full maintenance or such systematic assistance that was for him a constant and main source of livelihood, regardless of whether he received his own income. It should also be determined whether the person applying for the compulsory share can be classified as a disabled citizen.

If a potential compulsory heir is not included in the circle of heirs inheriting in the order of the first to seventh priority, the fact of cohabitation with the testator for at least a year before his death is required (clause 2 of article 1148 of the Civil Code of the Russian Federation; subparagraph “d”, paragraph 31 of the Resolution of the Plenum Supreme Court of the Russian Federation No. 9).

Step 2. Prepare evidence

A person applying for a compulsory inheritance share must confirm the circumstances on which he bases his claims - incapacity for work, being dependent on the testator and, in certain cases, living together with him for at least a year before his death (Part 1 of Article 56 Code of Civil Procedure of the Russian Federation).

It must be taken into account that in accordance with paragraphs. “b” clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 9, a person may be recognized as disabled if:

• the day of his coming of age coincides with the day of opening of the inheritance or is determined by a later calendar date;
• the day of his birth, which is associated with reaching pre-retirement age, is determined by a date earlier than the day of opening of the inheritance;
• disability was established for him from the date coinciding with the day of opening of the inheritance or preceding this day, indefinitely or for a period until the date coinciding with the day of opening of the inheritance, or until a later date.

Children who are under 18 years of age at the time of opening the inheritance are exempt from the need to prove the fact that they are dependent on deceased parents (Clause 1, Article 54, Clause 1, Article 80 of the RF IC; Determination of the Constitutional Court of the Russian Federation dated 06.11.2014 N 2428-O ).

In addition, since dependency presupposes financial dependence, the court, when assessing the evidence presented, will examine the ratio of the assistance provided by the testator and other income received at that time by the dependent (clause “c” of paragraph 31 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 9). Consequently, For example, you can present as evidence:

• a certificate of disability or documents confirming receipt of a pension as proof of incapacity for work;
• a certificate of salary, scholarship, pension or other income;
• bank account statements confirming money transfers by the testator to the applicant for the obligatory share;
• bank account statements and checks confirming the purchase by the testator of any items for the applicant;
• witness's testimonies.

Step 3. Compose an application to establish the fact of being a dependent

Such an application is drawn up in accordance with the general requirements established for an application for the establishment of a legal entity. fact. The application can be drawn up with the help of a lawyer or independently. The document must contain:

• the name of the court to which the application is filed - this will be a court of general jurisdiction;
• Full name, place of residence, contact phone number and email address of the applicant;
• Full name and place of residence of interested parties - other heirs, primarily those in whose favor the will was drawn up;
• explanations about the purpose of establishing the fact of being dependent on the testator and the circumstances on which this requirement is based;
• list of documents attached to the application.

The applicant himself or his representative can sign and submit the application if he has the appropriate authority to do so. Such powers are confirmed by a notarized power of attorney.

If the applicant is an incapacitated or partially capable person, his rights and legitimate interests must be protected in court by their legal representatives - in particular, guardians, trustees or guardianship authorities. However, citizens with limited legal capacity are subject to mandatory involvement in the case.

The following documents are attached to the application:

• copies of the application according to the number of participants in the process;
• a document confirming payment of the state duty;
• documents confirming the validity of the requirements, with copies according to the number of participants in the process;
• a document confirming the powers of the legal representative of an incapacitated or partially capable applicant;
• power of attorney, if the interests of the applicant in court will be defended by a representative.

The amount of the state duty when filing an application to consider a case to establish the fact of being a dependent is 300 rubles (clause 8, clause 1, article 333.19 of the Tax Code of the Russian Federation).

Step 4. Apply to the court and wait for its decision

To establish the fact of being a dependent, the applicant must apply to the district court at his place of residence. You can submit an application directly to the court office, send it by registered mail with a notification and a list of attachments, or submit it electronically on the official website of the court, if the desired court has the technical ability to do this.

According to the general rules of claim proceedings, civil cases are considered and resolved by the court before the expiration of two months from the date of receipt of the application to the court (part 1 of article 154, part 1 of article 263 of the Code of Civil Procedure of the Russian Federation).

Waiver of the obligatory share in the inheritance

The obligatory share in the inheritance can be waived. The law determines a person's right to receive such a share, and not the obligation to receive it. The only caveat is that you cannot refuse the obligatory share in favor of someone else. Refusal can only increase the share received by the heir under the will.

This limitation is due to the legal nature of the compulsory inheritance share, which is an exclusive personal right granted by law to a certain circle of persons.

It has a special purpose - to support financially and socially vulnerable categories of citizens, which is why it cannot be redirected to anyone else.

Therefore, if in any inheritance case there are two citizens who have the right to an obligatory inheritance share, each of them can receive only what is required by law. One of them will not be able to give up his share in order to increase the share of the other.

Before making a decision to refuse, you need to carefully weigh the consequences and be aware that this refusal is final. It will be impossible to subsequently withdraw a submitted application for refusal.

If the refusal of an obligatory inheritance share comes from a minor or incompetent person, additional difficulties may arise - permission from the local guardianship and trusteeship authority will be required, and the legal representatives of such an heir will have to prove that the refusal will not violate his material rights. This fact is checked especially carefully in case of refusal to inherit a share of real estate.

Some heirs believe that if they do not contact a notary and do not take any legal actions to accept the inheritance, then they automatically refuse it.

Therefore, if there is a need to renounce the obligatory inheritance share, you must definitely contact a notary with a corresponding application. For refusal to accept an inheritance, the law sets the same period as for acceptance - 6 months.

In addition, the applicant for the compulsory share has the right to submit an application with a request to issue him a certificate of right to a compulsory share in the inheritance in a smaller amount. But the mandatory share cannot be increased.

When the obligatory share in the inheritance may not be allocated

During the trial, the obligatory share may be reduced or it may be denied altogether if the heir under the will proves that he used the bequeathed property for living or as a source of livelihood, while the obligatory heir never lived with the testator, has never used the inherited property and has no need for it.

This is possible, for example, if the heir under the will used the inherited property as a creative workshop or earned his livelihood with the help of the inherited car, and the heir of the compulsory share did not use this property at all. But the court in each specific case will take into account many nuances, including the property status of all heirs - both mandatory heirs and those in whose favor the will was drawn up.

In addition, according to paragraph 4 of Article 1117 of the Civil Code of the Russian Federation, unworthy heirs can also lose an inheritance share, including a mandatory one, if it is proven in court that they tried to obtain or increase it illegally or committed a crime against the testator.