Mandatory share in inheritance by law for pensioners

The concept of a mandatory share by law

As a rule, a mandatory share in the inheritance is guaranteed by law to legal successors of certain categories. Its allocation is aimed at protecting some individuals from financial difficulties arising in connection with the death of the testator who provides them financially.

Usually the concept is used in the case of a will in which such citizens are not indicated. More detailed information is presented in the article “Mandatory share by law.”

Heirs entitled to an obligatory share

The law provides an exhaustive list of persons who have the opportunity to receive the guaranteed portion. According to the Civil Code of the Russian Federation, a mandatory share in the inheritance is provided for the following categories of citizens:

• minor children of the testator, including those adopted by him;
• disabled children of the deceased;
• disabled spouse and parents of the testator;
• disabled dependents.

The following are considered incapable of work:

• women over 55 years of age and men over 60 years of age;
• disabled people of groups I, II and III.

In the case of dependents, in order to qualify for the compulsory share, a number of conditions must be met:

• receipt of funds from the testator for at least a year before his death;
• living together with the deceased for at least a year;
• systematicity of assistance provided;
• the assistance provided is the main source of livelihood for the dependent.

The concept of compulsory heirs

When considering the issue of a guaranteed share, it is necessary to determine who is considered the legal successor.

According to the rules of law, compulsory heirs are citizens who have the right to part of the inherited property, even if the testator did not indicate them in the will or completely refused the inheritance.

Who is not entitled to the obligatory share

As a general rule, the following do not have the right to an obligatory share in the inheritance:

• able-bodied adult children of the testator, including adopted children;
• able-bodied parents and spouse of the testator;
• unworthy heirs;
• successors of the deceased heir, inheriting from him in the order of hereditary transmission.

What part of the inheritance is the obligatory share?

To calculate the share, you should take into account all legal successors of the corresponding priority according to the law. It is important to know that the obligatory share of the inheritance cannot be less than half of the legal share. We take into account that it is possible that the amount guaranteed by the court may increase or decrease. Therefore, it is initially necessary to determine the amount due to the successor by law.

The guaranteed share is allocated first from non-probate property, if any. If this is not enough, then the rest is separated from the will, thus reducing the inheritable property of the successor under the will.

Let us give an example of how the size of the obligatory share in an inheritance is determined. The citizen has two adult children, one of whom is a group I disabled person, but did not live with his father, was raised by his mother (his wife from his first marriage), and was not indicated in the will.

According to the will of the testator, the second son becomes the legal successor. Apart from children, there are no first-line heirs. Therefore, according to the law, they are entitled to ½. The disabled son must receive at least half of the legal share, that is, no less than ¼.

Surviving spouse's share of inheritance

Let's look at what the obligatory share in the inheritance, which is due to the spouse of the deceased, is. The law provides that the surviving spouse receives half of the joint property. It is important to remember that jointly acquired property does not include:

• personal belongings (excluding jewelry and luxury items);
• everything acquired before marriage;
• gifts and inheritance received during marriage.

Let's try to calculate the obligatory share in the wife's inheritance after the death of her husband. After the death of her mother, ownership of the land was transferred to her; during marriage, the couple bought an apartment and a car. The wife receives ½ of the cost of the apartment and car. And the plot becomes her property completely.

Exceptions to the application of the provisions on marital share relate to cases of concluding a marriage contract between husband and wife. The features of inheritance by a surviving spouse are discussed in more detail in the article “Spousal Share”.

Allocation of part of the property

The allocation of OA is carried out either by a notary or by a court . Moreover, if the testator’s property is of a versatile nature, that is, it contains immovable property, money, and objects, then in order not to divide the parts, everything is converted into a monetary equivalent.

In accordance with the cost that covers the cost of the share, the amount that should be transferred to the person receiving the OA is determined. Everything that a person who is an heir can receive as an inheritance can be counted in the OA.

The allocation of a share may be accompanied by such actions as an examination or cadastral valuation.

These actions are necessary when it comes to movable and immovable property that has no value, but it needs to be determined.

For example, if we are talking about a car, he orders an expert assessment of the value, and the result of the examination is attached to the will.

The same applies to real estate in the form of apartments and houses. If we are talking about the transfer of land, then cadastral engineers are called , who determine the cadastral value. Read more about the features of inheriting a share in a privatized apartment or house here.

Market value in this situation has no weight or meaning.

If we are talking about small items, then either an expert or the heir himself can stop their value by indicating the average market value depending on the condition of the item.

Rules for division of inheritance

The property of the deceased is divided by agreement of the heirs or through the court. It is impossible to make a division before the birth of a conceived heir.

There are special features when dividing indivisible things included in the inheritance mass. The successor who owned the thing on an equal basis with the deceased has the advantage. In its absence, priority is given to the relative who constantly used the item.

In the case of division of items of ordinary household furnishings and household items, things primarily go to the heir who lived with the testator on the day of his death.

In any case, the priority heirs receive property in exchange for their share, which entails its disproportionality.

Deprivation of the right to inherit by will

A will is an expression of the owner’s will regarding the distribution of his property after death. The principle of freedom of will means that the testator himself determines in what amount and to whom his property will be transferred. The limitation of this principle is the inheritance of a compulsory share contrary to a will.

Thus, the will-maker easily deprives one of the heirs of his share by law. To do this, it is enough simply not to mention the unwanted relative in the document. Or the owner can directly indicate that a specific person is not the heir.

The reasons for deprivation of the right to inherit do not play a role when drawing up a will: the citizen is not obliged to voice or justify them to anyone.

Not only the deprived heir himself, but also his descendants will not be able to receive the property. The features of disinheritance are disclosed in the article “Can a testator deprive heirs of the right of inheritance.”

Refusal to award

If for some reason the heir who is mentioned in the will cannot receive property that he had the opportunity to use during the life of the testator, or received income from interacting with them, and the obligatory heir in the meantime did not use these things, then the court has the right refuse the award.

This verdict is made only taking into account individual circumstances , as well as taking into account the financial situation of the parties and the possibility of financial security. At the request of one of the parties, without the presence of such circumstances of the case, the court is not competent to make such a decision.

The heir himself can also make a voluntary refusal, but he does not have the right to dispose of the share and alienate it.

Is it possible to renounce?

Heirs can refuse OA; moreover, no one can infringe upon them in such a right. The failure must be recorded accordingly.

Therefore, it is better for the heir to carry out the refusal either in court or in some way formalize it with a notary so that such a will has legal force.

How to do it?

To cancel you must meet the deadline. Thus, a waiver of a share can be made only within 6 months after the inheritance was opened. This means that one year after the death of the testator, you will no longer be able to refuse the share due to you.

The second reason that you should familiarize yourself with is that you cannot refuse in favor of any person, but you can refuse an inheritance in principle without any problems. The refusal is not formalized; you simply do not enter into inheritance rights. Similar requirements are enshrined in Article 1158 of the Civil Code.

That is, in order to renounce a share, you simply need to refuse to sign when reading the will, which means to enter into legal rights.

Read more about how to formalize a waiver of part of an inheritance here.

Registration of a mandatory share

Persons entitled to an obligatory share in the inheritance must apply to the notary's office at the place where the inheritance case is conducted within six months from the date of death of the owner. They write an application for a certificate of inheritance.

Required documents:

• the applicant’s passport (if a representative applies, additionally - his passport and a notarized power of attorney);
• documents confirming relationship with the deceased;
• death certificate of the owner;
• documents proving the right to receive a share: certificate of disability, pension certificate;
• documents for inherited property.

After the applicant is recognized as a mandatory heir, he will receive a certificate.

Possibility of waiving the obligatory share in a will

Any heir has the opportunity to renounce his part of the inheritance, including the obligatory share. To do this, you need to write a written refusal at the notary office where the inheritance case is opened. As a result, all rights to the guaranteed portion will be lost.

The refusal is accepted only in favor of the legal successors specified in the will. Consequently, renunciation of the obligatory share in the inheritance in favor of other persons not specified in the document is impossible.

Possibility of renunciation of the obligatory share by the incapacitated

Refusal of a share of the inheritance does not require explanation of the reasons. An exception to this rule is cases when the subject of refusal is the obligatory share in the inheritance of minors or disabled people.

The peculiarity of the legal status of incompetents is that their rights and responsibilities are exercised by guardians in the interests of the ward, but under the control of the guardianship and trusteeship authorities.

Receiving a mandatory share is a kind of guarantee of financial stability.

In practice, it is possible that the question may arise as to whether it is possible to refuse an obligatory share in the inheritance to a person incompetent.

If the guardian believes that in case of refusal of the obligatory share, his ward will not suffer financially, his living conditions will not worsen, he requests permission from the guardianship and trusteeship authorities to make a refusal.

If the PLO staff considers that the guardian’s arguments are not justified, then the permit will not be issued. And it will not be possible to refuse.

The right of a minor to refuse a guaranteed part of the inheritance

Civil legislation does not prohibit drawing up a waiver on behalf of a minor, also by his legal representatives. And in this case, it is necessary to obtain permission from the guardianship authorities. To do this, you need to prove that in case of refusal, the rights of the minor will not be violated and the financial situation will not worsen.

How is the share allocated?

The legislation reflects: in a will, when there is no indication in it of a specific citizen who has the authority to distribute the property mass, the compulsory method is used.

Norm 1149 of the Civil Code provides for the possibility of reclaiming the specified part for:

• persons who are minors;
• children in the age group over 18 years of age, provided that they are disabled;
• husband or wife of the deceased who is disabled;
• parents who have lost their ability to work.

Citizens classified in the listed categories are included in the first priority of legal successors. These rules apply if the deceased's property is divided based on statutory provisions. Such relatives are not always included in the will. Each person can form a testamentary act during his lifetime to express his will regarding the fate of things after his death. The legislator does not establish restrictions on who can become a legal successor under a will. The indication may be to foreigners and even organizations.

ATTENTION !!! To open an inheritance estate, you will need to provide evidence that the citizen has died. Such confirmations must be sent to the notary's office. The notary is authorized to conduct inheritance business. Therefore, in the future, actions related to the allocation of a share take place in the presence of a notary. It is necessary to keep in mind the features related to the execution of testamentary acts. They are taken into account when distributing shares in property.

When a citizen draws up a will, he has the right to indicate that the things belonging to him, in full or some part of them, are divided between specific persons. It is allowed to reflect in the generated act the property that a person owns on the day the document is drawn up, as well as things planned for acquisition in the future. Only property that belongs to the deceased by right of ownership can be distributed among heirs.

Regardless of the will or the time of its preparation, relatives will be able to find out the contents of the document after the owner of the property passes away. This is due to the fact that the secrecy of this category of documents is established at the legislative level. When persons classified as obligatory legal successors have learned that they have not been included in the list of applicants for the inheritance, they have the right to declare themselves. They are allocated the established part. You will be required to provide documentation demonstrating your lack of ability to work.

Cases of increment of hereditary share

An increase in the inheritance share means a recalculation of the shares of each of the heirs due to an increase in their size due to the part of the fallen heir.

The division of shares during inheritance, as a rule, implies either their equality or proportionality with the share due by law. In the case of an increment, the shares of certain successors increase.

Increment cases:

• waiver of rights to part of the inherited property;
• non-acceptance of inheritance;
• lack of inheritance rights;
• invalidation of the will;
• removal of rights to property.

A successor who renounces the right of inheritance is deprived of the opportunity to receive the property of the testator. The subtleties of increasing the share are discussed in detail in the article “Increase in the inherited share.”

Deprivation of compulsory share

The legislator provides that the obligatory share of the inheritance in the presence of a will may not pass to the obligatory heir. The decision on deprivation is made by the court. Most often it is associated with inherited housing or a source of livelihood (workshops, tools).

The main condition here is the property status of the obligatory heirs and the impossibility of transferring property to the heir under the will when allocating the obligatory share.

The fact of use of the property by the heir under the will and the availability of housing by the obligatory legal successor are taken into account.

Notary practice knows examples of receiving a share under a will in the presence of obligatory heirs. For example, when the testator leaves an apartment to a relative living in it who has no other housing. At the same time, the obligatory heir lives in another place and does not experience housing difficulties.

Confirmation of disability

In order to exercise the right to a compulsory share, it is necessary to confirm the lack of ability to work. For this you can use:

• pension certificate, which is issued by the Pension Fund of the Russian Federation;
• certificate of early retirement due to disability or other legal grounds.

Reaching retirement age in accordance with the legislation of the Russian Federation is also confirmation of the lack of ability to work.

Establishing the fact of retirement is important when inheriting under a will and establishing a mandatory share. If the deceased person did not make a will during his lifetime, then the spouse or retired parent will be included in the priority group of heirs according to the law solely based on the presence of family ties with the deceased.

Difficulties in allocating and calculating the mandatory share

The main problems relate to the allocation and calculation of part of the property when bequeathing. Then the obligatory legal successor cannot claim bequeathed property if there is intestate property, even if the first is necessary for him, and the second is of no value.

The problems of the obligatory share in the inheritance arise from the impossibility of making an accurate arithmetic calculation, and therefore all errors are made in favor of the obligatory successor.

It should also be taken into account that the obligatory share is sometimes extinguished by the legal share, therefore the provisions of Art. 1149 of the Civil Code of the Russian Federation in this case do not apply.

Judicial practice on disputes regarding compulsory shares

The main reason for inheritance disputes, according to judges, is the low level of legal culture of the population. Judicial practice in cases of compulsory share in inheritance under a will shows that frequent misconceptions of citizens result in the lack of proper registration of rights to inheritance. Judges themselves often make mistakes.

Most often, controversial issues are associated with determining the composition of the inheritance mass, for example, when allocating a marital share. Determining the circle of heirs also causes difficulty.

By analyzing examples of judicial practice in inheritance cases, you can avoid quite common mistakes and resolve the dispute pre-trial.

Share allocation

In order to receive the mandatory share, citizens of retirement age must take certain actions. At the initial stage, a certificate is received confirming the death of the person. This paper is transferred to the notary office. You will need to find out what is reflected in the will. An important point is who is classified as the legal successor and the constituent parts of the inheritance mass. You need to fill out an application and send it to a notary. It indicates that the person wishes to accept part of the inheritance mass. This act reflects the fact of relationship between the applicant and the deceased. In addition, an indication of lack of ability to work is made.

ATTENTION !!! The size of the share depends on how many heirs the deceased has. Property is divided in equal parts using legal provisions. When a set share in the inheritance is allocated, the citizen can take only half of what would have passed to him on the basis of legislation. When the 6 month period expires, you will need to draw up an act confirming the rights to the mass. If you include real estate in it, you will need to register your authority with Rosreestr.

In addition to the application, when forming the established part, you need to collect other documentation. This is a decision issued by a judge or a paper confirming the conclusion/dissolution of a marriage relationship. This is necessary in order to confirm the existence of a relationship between persons. In addition, a pension certificate is required. The legal successors may present documents establishing the right to certain property. If these acts are not submitted, the employees of the notary office themselves formulate requests to the competent authorities.

When the exercise of rights to the part in question occurs, it is imperative to comply with the rules on deadlines. The application must be submitted within the period reflected in the legal acts. If the deed is received by the notary later, then they refuse to allocate a part of the property mass. The restoration of this period is implemented in a certain order. You will need to indicate that there are valid reasons why the pass was allowed. Examples of such reasons are a serious illness, for treatment a person was hospitalized.

IMPORTANT !!! When a citizen submits an application for the allocation of a compulsory share, he needs to take into account that, simultaneously with the property, the debts of the deceased are transferred to him. The law indicates that it will not be possible to formalize rights only to the assets of the deceased, since debts are part of the estate. This rule applies even if the assignee is a pensioner or low-income person.

Therefore, before giving consent to accept the inheritance mass, you need to find out what exactly is included in its composition. If the deceased has large debts, then in all situations it will not be beneficial to make demands regarding the allocation of a mandatory share.