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Mykolaieva Yulia

Head of the family practice department

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MANDATORY SHARE IN HERITAGE

Many Ukrainians believe that if they make a will in the interests of one of their children, all property after their death will become the property of this most worthy son, and other children who insulted their family during their lives, insulted their father and mother, behaved unworthy of them – they will have nothing from the property.

Sometimes the testator believes that he deprives the heirs of the first priority right to inherit.

But unfortunately for such parents it does not fully comply with current legislation. Under certain conditions, even the most beloved son or daughter, who, based on morality and justice, have no right to their parents’ property, can still inherit a certain share.

Because there is Article 1241 in the Civil Code of Ukraine, which states that minors, minors, adult incapacitated children of the testator, incapacitated widow (widower) and incapacitated parents inherit, regardless of the content of the will, half of the share that would belong to each of them in this case inheritance by law (mandatory share).

Incapable persons include:

  • persons who have reached the age of 55 – women, men – 60 years, ie the age that gives them the basis for receiving an old-age pension, regardless of whether they continue to work;
  • invalids of I, II and III groups.

Thus, the Constitutional Court of Ukraine in its decision of 11 February 2014 №1-rp / 2014 concluded that regardless of the content of the will, the right to a mandatory share in the inheritance have adult incapacitated children of the testator, recognized as disabled in the manner prescribed by law, disability groups.

Disclosure of the content of the term “adult disabled children” used in the first paragraph of Article 1241 of the Civil Code of Ukraine on the right to a mandatory share in the inheritance should be based on the provisions of the Family Code and pension legislation and laws of Ukraine governing social insurance “Disabled.”

Given the relationship between heirs and testators, the size of the mandatory share in the inheritance may be reduced by the court.
Also, we draw your attention to the fact that the right to a mandatory share in the inheritance can not be transferred by inheritance, as it is special.

There are cases when the heir renounces his obligatory share in the inheritance or does not accept the inherited property within the period prescribed by law, in which case the property is inherited by the heirs by will.

Dear citizens, if you want to make a will for one of your children, remember that if for some objective or subjective reasons you do not want (or are afraid) that your property did not go away after death the part of the child who, in your opinion, does not deserve this property, the will will not fully comply with your will, because your disabled son or daughter will still be entitled to a share of the inheritance!

Therefore, before making a will, I advise you to consult a lawyer to prevent an undesirable result for you.

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