Article 1149. Right to an obligatory share in the inheritance

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Inheritance of the assets of a deceased citizen can occur by law or by will. However, wills are very rare in Russia, so relatives inherit within the framework of the law. This means that they will receive a share of the inheritance depending on their relationship category. Individual citizens have the right to an obligatory part of the property, i.e. enter into inheritance due to their status.

What is a mandatory share by law, how does it differ from a share under a will, and how to enter into an inheritance? Let's deal with everything in order.

What does "Required share" mean?

Traditionally, let's start with the definition of the concept:

The term “ obligatory share ” means a part of the property that is due to the relatives or dependents of the deceased citizen, regardless of the presence and/or content of a will.

It often happens that a person wants to assign all or part of his assets to one or more applicants. At the same time, he has close and needy relatives. The legislator does not prohibit the testator from disposing of personal property. However, freedom of expression is not absolute. If a citizen has disabled parents/spouse, he cannot deprive them of part of the inheritance.

The obligatory share refers to inheritance by will (Article 1149 of the Civil Code of the Russian Federation). If we are talking about inheritance by law, the term is not entirely appropriate. However, this does not interfere with understanding the meaning of the concept and determining the circle of applicants for the assets of the deceased.

The main differences from the obligatory share in a will:

1. Limited list of applicants.
2. The larger share that the heir will receive by law - instead of 50%, the entire share is inherited.
3. Acquiring the rights and responsibilities of an heir - I and subsequent stages.

Thus, the obligatory share by law has its own specificity - to give relatives and dependents the right to receive the property of the deceased.

Valuation of inherited property

When registering an inheritance, one of the basic conditions is an assessment. Based on it, the notary makes calculations of the amount of state duty that applicants for property must pay.

At the same time, a report on the value of assets will allow you to determine the size of the share of the obligatory heir in monetary terms. You can order an assessment from a private or public institution.

The only condition is the availability of a license for a specific type of property (cars, real estate, securities).

It is better to order an extract on the cadastral value of a property from the territorial office of Rosreestr. You can fill out an application for it online.

If necessary, you can use an inventory valuation of property. It can be ordered from BTI.

For other types of property, appraisals are carried out by independent companies. The cost of services depends on the type of property.

The size of the mandatory share by law

Many people probably know that the obligatory share in a will is exactly 50% of the property that the heir would receive by law. It’s another matter if you need to determine the size of the mandatory share by law.

Let us highlight two features:

• property under a will is excluded from calculations;
• the size of the obligatory share in inheritance by law is equal to the part that any other heir in line receives.

For example , we have 5 heirs of the first stage + 2 applicants for the obligatory share (a dependent cohabitant and a disabled nephew). The total number of heirs is 7 people. The size of the obligatory share = 1/7 of the total property according to the law. All heirs in line will receive the same share (clause 2 of Article 1148 of the Civil Code of the Russian Federation).

Composition of compulsory heirs

The list of applicants for the obligatory share of the inheritance is determined by law and differs from the composition of citizens who have the right to alimony during the life of the owner.

are compulsory heirs :

• disabled parents or spouse;
• young children (natural/adopted);
• disabled dependents.

The definition of disability is given in the Federal Law of December 15, 2001 No. 166-FZ. The conditions for receiving an inheritance depend on the degree of relationship with the deceased subject. Children of the deceased citizen only need to present a birth certificate.

The law places the greatest demands on the testator’s dependents who are not relatives (for example, a former spouse).

Dependents must justify:

• disability;
• being in custody;
• cohabitation with the testator for more than 1 year.

The burden of proof lies with the beneficiary. The dependent can prove the fact to a notary or in court.

Who has the right to an obligatory share in the inheritance under the law?

The list of applicants for inheritance is determined by the provisions of the Civil Code of the Russian Federation. This includes close relatives or persons who were dependent on the deceased citizen.

So, persons entitled to an obligatory share in the inheritance:

Disabled (pensioners)

Citizens of retirement age (spouse, parents) are included in the category of disabled persons. The obligatory share is the right to inherit from the first category of kinship. Since we are talking about inheritance by law, the spouse and parents of the deceased will already receive a share in the property.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The pensioner status needs to be confirmed - in 2021, President of Russia V.V. Putin signed a decree raising the retirement age: for men to 65 years, for women to 60 years. This will not happen immediately, but in the period from 2021 to 2024. If the heir has not yet retired or is working as a pensioner, he cannot be considered a disabled dependent. For inheritance by law, this is not critical, but it limits the rights when receiving an inheritance under a will.

Read more about inheritance in this category in the articles “Inheritance by disabled dependents of the testator,” as well as “Mandatory share in the inheritance by law for pensioners.”

Minor children

Minors under 14 years of age are the most vulnerable category of heirs. They cannot act independently - their interests are represented by legal representatives (parents, guardians). If a minor child is owed a mandatory share, the parents contact a notary. If the heirs find out about the death of a relative after 6 months , they can go to court to restore the deadlines.

It must also be said that the number of obligatory heirs includes adopted persons (Article 1147 of the Civil Code of the Russian Federation). The fact can be proven on the basis of an adoption certificate - to the second spouse, the parents of the deceased or other guardians of the child.

Children conceived but not yet born are also obligatory heirs by law. If the notary becomes aware of such a fact, he will suspend the issuance of certificates until the baby is born. And only if the testator’s child dies before birth or dies in the first hours of life, he is not included in the list of applicants.

Read about other nuances in the article “Inheritance by a minor child by law.”

Dependents

A controversial category of heirs of the compulsory share is dependents who are not relatives or family members.

Basic conditions for entering into inheritance:

• incapacity for work - lack of work, disability of I-III degree, pensioner status, training - in a word, financial dependence on the owner of the property;
• living with the testator for at least 1 year before death - this does not mean registration, but actual living in the same apartment/house.

If a dependent meets these criteria, he or she is entitled to a mandatory share under the law. According to the rules, he will enter into an inheritance on an equal basis with other heirs in line, and if they are absent, he will inherit the entire assets (Clause 3 of Article 1148 of the Civil Code of the Russian Federation).

How to calculate the obligatory share in the inheritance if there is a will?

The obligatory share is the part of the inheritance that the applicant receives in any case. Registration of a share does not depend on the provisions of the will, the inheritance order, or the number of heirs. Therefore, the testator needs to take into account that he cannot deprive persons who may qualify for OA of part of the property. Such persons are disabled citizens who are close relatives of the testator or who are under his care.

Who can claim a mandatory share in the inheritance if there is a will?

Applicants for OA are:

• Parents of the testator who have reached retirement age (early retirement is not considered a sign of incapacity)
• Minor children
• Disabled people
• Disabled dependents (inheritance by disabled dependents is possible if they were in the care of the testator for a year or more before his death).

Only disabled persons who are primarily heirs (with the exception of dependents) are taken into account. These are the testator's parents, his spouse and children.

Estimation of hereditary mass

How to calculate the obligatory share in the inheritance? This is impossible without a preliminary assessment of all property that is supposed to be divided between the heirs. Can be carried out:

The procedure is carried out by a professional appraiser. It cannot be carried out by a third party. The appraiser draws up a special act, which must be submitted to the notary's office.

Dependents inherit along with any line of succession.

Legal nuances

According to current legislation, the obligatory share in the inheritance is half of the part of the property that would go to the applicant upon inheritance by law.

However, if the will was made before 1 March 2002, the old law will apply. According to it, the heir receives 2/3 of the share that would have gone to him by legal inheritance.

Formula for calculation

There is a formula for calculating the obligatory share in the inheritance. It looks like this:

N is the number of heirs who would receive the property if it were legally distributed.

Example

You can give an example of calculating the obligatory share in an inheritance.

The testator has two close relatives who could receive property rights legally: a father and a son under 18 years of age. The total cost of the inheritance is 800,000 rubles. If not for the will, the testator's son would have received 400,000 rubles. This is the share that is legally awarded to him. However, due to the presence of a will, the child will receive only 200,000 rubles. That is, half of what he could have received legally.

That is, calculating the obligatory share in the inheritance during a will involves taking into account the number of heirs. Dependents inherit along with any line of succession, and therefore this order is also relevant for them.

From what funds is OA paid?

The portion of property obtained as a result of the above calculations is minimal. If a person is indicated in the will, however, according to the document, he inherits fewer property rights than the formula showed, the lack of them must be compensated.

The obligatory share is formed at the expense of the property that belongs to the inherited estate, but was not indicated in the will. If the document contains all the property, the shares of the heirs under the will will be reduced to create an OA.

Can the share be reduced?

OA can not only be reduced, but even abolished altogether. This is relevant for those cases where the heir is found unworthy. The basis for this is the provisions of Article 1117 of the Civil Code, in particular, paragraphs 1-2. The following persons are deprived of the right to the obligatory share, or it is reduced:

• Carrying out illegal actions against the heirs or the testator in order to illegally seize property that persons cannot claim
• Putting pressure on heirs to increase their property rights
• Those who avoid helping the testator in the last years of his life.

Even retired parents cannot claim property rights in the event of deprivation of parental rights. In such a situation, the adoptive parents receive the inheritance. When deciding on the size of the share, the financial situation of the heir is taken into account. If he does not need these funds, they can be reduced.

How to register an OA?

To register a share, you must provide evidence of the following facts:

• Family connection with the testator or being dependent on him
• Disability.

For evidence, you must present documents, these can be:

• Certificates of disability
• Pension certificate
• Birth certificate
• Marriage document.

The most difficult thing is to establish the fact of dependency. It may be necessary to call witnesses to help. Funds are awarded to a dependent only if the following circumstances exist:

• Disability that can be documented
• The deceased's financial assets were the main source of income
• Living with the testator in the same territory for a year or more before his death.

A dependent may be recognized, for example, as the disabled common-law spouse of the deceased. This is the simplest case. If she does not have documents confirming her inability to work, the obligatory share will not be awarded.

Additional information about the obligatory share in the inheritance and its size in this video:

How to calculate shares in an inheritance? This is a procedure involving many steps. It is not enough to know one formula; you also need to have information about the total value of the inheritance mass, the number of heirs within one line according to the law. Only on the basis of these data can a calculation be made. After the necessary indicators have been found, you need to take care of confirming your disability and family connection with the testator. All documents are submitted to the notary's office.

Mandatory share in the inheritance in the case of a will: size and example of calculating the inherited part

The obligatory share in the inheritance in a will is the only limiter on the freedom of disposal of property proclaimed by civil law.

Who can claim their rights to this part of the inheritance and how to calculate its value are described below.

Who has the right to an obligatory share in the inheritance?

Priority is given to persons from socially vulnerable categories. The following have the right to an obligatory share in the inheritance:

• Children of the testator who have not reached the age of majority or do not have legal capacity.
• The spouses and parents of the deceased who have lost their ability to work due to age or due to health conditions.
• Dependents of the testator who were deprived of the ability to work and lived at his expense for at least a year before his death.

The group of minors includes persons under eighteen years of age.

A child conceived during the life of a parent and born alive within a year after his death also has the right to inherit a compulsory share in the inheritance. Being adopted after the death of their parents, children are also claimants to an obligatory part of the property.

The fact that children study or work is not taken into account. Deprivation of the mandatory part is also not allowed due to emancipation, that is, the implementation of labor or entrepreneurial functions by children upon their sixteenth birthday, or the creation of families by such children before the age of 18.

The potential heir will not find the definition of disability in the Civil Code of the Russian Federation. The essence of the concept is revealed by labor legislation. In accordance with Federal Law No. 400 of December 28, 2013, persons who became pensioners due to old age, disability and loss of a breadwinner are considered disabled.

These are age pensioners, disabled people (that is, people with disabilities confirmed by certificates based on the results of medical examination in federal institutions), children under the age of eighteen.

Official recognition of a citizen as disabled does not always correlate with limited ability to work. But long-term incapacity for work is often followed by the assignment of a disability to the person.

The concept of dependency is not disclosed in civil legislation either. Dependents receive the right to an obligatory part of the property if they meet both criteria:

• lack of ability to work
• existence due to assistance from the deceased for at least a year before his death.

The consent of other heirs to receive this part of the inheritance is not required, however, sometimes it is necessary to prove the right to allocate it in court.

The obligatory share is not inherited by right of representation.

Successors of all orders, except the first, are considered as applicants for the obligatory part only when the conditions for recognition of their dependency at the expense of the testator are met.

The amount of the obligatory share in the inheritance according to the law

The part independent of the contents of the will represents 1/2 of the share that would pass to the legal successor by law. in the absence of a testamentary disposition of the deceased.

When calculating the size of the share, the entire inheritance mass is taken into account: real estate, a car, funds on deposit, things that are used in everyday life to meet household needs.

Determining the size of the mandatory part is strictly regulated by law. The right to it is satisfied at the expense of the part of the property not specified in the will, that is, at the expense of the inheritance due to the successors by law. Cases in which the obligatory share coincides with the entire untested part of the inheritance are not excluded. Then the heirs according to the law will not receive anything, but the will of the deceased will be fulfilled in full.

If the property not specified in the will is not enough or the inheritance is completely distributed according to the will, then the obligatory part is provided at the expense of all or part of the willed property.

As a result of comparing the property status of the legal successors, the court is authorized to reduce the obligatory part or refuse to satisfy the claims for its allocation.

An example of calculating the obligatory share in an inheritance

A woman has died. In accordance with the will, her husband receives a contribution in the amount of 3,200,000 rubles. daughter - a passenger car worth 1,000,000 rubles.

The total amount of the inheritance is supplemented by an unwilled dacha worth 900,000 rubles. The husband, daughter and son of the deceased, who have a disability of the first group, can apply for it.

Each legal successor, in the absence of a will, would receive 1/3 of the inheritance, in the monetary equivalent of (900,000 * 1/3 =) 300,000 rubles.

The son of the testator is the obligatory heir. Consequently, he is entitled to (1/3:2 =) 1/6 of all property, or (4,200,000 rubles * 1/6 =) 700,000 rubles. Since he has the right to property worth 300,000 rubles. from the part not specified in the will, then he will have to allocate an inheritance of another 400,000 rubles (= 700,000 rubles - 300,000 rubles). Hence, the son’s share in the part not specified in the will is 1/2, and the husband and daughter each own 1/4, which in value equivalent is 225,000 rubles.

Waiver of mandatory share

The law allows the successor to accept the property or formally relinquish it.

The refusal is issued in the prescribed form by a specialist at the notary office at the place of conduct of the case.

This must be done within six months from the date of death of the former owner.

Having refused an inheritance, a person will not be able to change or cancel his decision. Before writing a refusal, you need to carefully consider its consequences.

The obligatory heir has the right to first accept the property and then formalize the abandonment of it.

Successors need to realize that along with assets - an apartment, land, means of transportation - debts are also inherited.

If the successor has the right based on the written order of the deceased and is a claimant to the obligatory share, he may refuse the inheritance under the will and accept the obligatory share.

Current legislation does not allow obligatory heirs to make a refusal in anyone's favor.

The problem being analyzed requires taking into account many subtleties, which a specialist from a notary office will help you understand.

Mandatory share in the inheritance upon will. An example of calculating the obligatory share in an inheritance

The right to an obligatory share in the inheritance is secured by the civil legislation of Russia. For example, norm 1149 of the Civil Code defines a group of persons who are entitled to such a share, regardless of whether such persons are heirs by will, by law, or are not heirs at all.

Narrowing of testamentary freedom

A detailed study of civil law can determine that there is a group of people to whom inheritance law provides the opportunity to receive an inheritance, regardless of whether the testator has a will or not. The rules of law that determine the obligatory share are imperative, that is, they do not allow any changes and require unquestioning submission. The obligatory share in the inheritance in the case of a will is also regulated by articles of the Civil Code of the Russian Federation, which limit the freedom of last expression of the testator. In particular, norm 1119 of this legislative document directly provides for such a restriction. Heirs who are entitled to an obligatory share in the inheritance under a will or by law are called necessary or obligatory successors. It is impossible to deprive them of the rights to the discussed share, with the exception of cases that will be described below.

Persons who are provided with a mandatory share

The Civil Code defines the circle of persons who fall under the definition of heirs with a mandatory share. Thus, it is quite possible to divide these individuals into two categories, which will correspond to descending and ascending lines.

1. Children of the deceased testator who have not reached the age of eighteen, as well as children of adult age but disabled. This category of persons also includes a spouse who is disabled.
2. The testator's parents who are disabled. Additionally, the legislator included in this category persons who were supported by the testator. These dependents may or may not be related to the deceased by blood.

The presented list of people who are entitled to a mandatory share in inheritance by will or by law is complete. Apart from them, no one can use this right. That is, they are exclusively legal successors of the 1st line, and may also be additionally heirs of other lines or even persons who are not relatives of the testator, but only if they were dependent on him. All other heirs - from the second to the last stage - cannot be owners of a compulsory share. It should be noted here that descendants, by right of representation, cannot claim an obligatory share.

Additionally, the following point must be taken into account. If the children of the testator were adopted by other persons after his death, then as a result of such adoption they do not lose their rights to the obligatory share, because the relationship between the parent and the child was not terminated at the time the inheritance was opened.

Characteristics of law

The privilege to an indispensable share is not at all connected with the obligation to live together or with the joint management of the heirs claiming an obligatory share with the deceased. But there is an exception here - this rule does not apply to disabled dependents.

The main characteristic that a mandatory share in an inheritance has in the presence of a will, as well as in the absence of one, is that the right to it is in no way dependent on the will of the remaining heirs. Moreover, this applies not only to heirs by law, but also by will.

Acquisition of a mandatory share

The legislation provides that the right in question must be executed regardless of the turn of the corresponding successor. In this case, the absence or presence of a will matters. Thus, if there is no such will, then the successor who owns the basis for the obligatory share participates in the inheritance along with the line that is called upon. If such a will does exist, then this legal successor will take part with the heirs under the will. And in cases where only a certain amount of property is inherited, and all other property is divided between successors by law, then the heir who receives the obligatory share will be called upon to inherit both with the legal successors under the will and with those who receive the property of the deceased on based on the law.

How to determine size

An example of calculating the obligatory share in an inheritance is absolutely not complicated. Legislative acts determine that the smallest size of such a share is calculated by dividing in half the size of the share that comes out when dividing the total inheritance mass by the number of successors by law who can be called to inherit in the absence of a will. In this calculation, it is also necessary to take into account successors by right of representation and the number of heirs claiming the obligatory share. Using such a calculation, you can easily determine what the obligatory share in the inheritance is.

Advantage of compulsory share

The legislator has determined that the successor who has the right to a compulsory share has an undoubted advantage over all other heirs. This advantage is, in particular, expressed in the method of satisfying his right. Thus, the obligatory share in the inheritance in a will must first be satisfied from that part of the property that is not transferred under the will. In the event that such property is not enough, then the obligatory share must be satisfied from the bequeathed part of the inherited property. This advantage is due to the state’s protection of the most vulnerable individuals, including socially.

The obligatory share in the inheritance guarantees that the successor who has the right to it will receive the minimum amount of such a share from the amount of the testator’s property that was not bequeathed. Such a share must be determined before the shares of other successors in the queue called for inheritance are determined. Even the fact that the establishment of a compulsory share may negatively affect the share of the remaining heirs (they may significantly decrease or disappear altogether) does not reduce the rights of the heir claiming a compulsory share.

Minimum guaranteed size

The above-mentioned persons are guaranteed by civil law a minimum amount of inheritance through the approval of a mandatory share. What does it mean? This implies that the obligatory share in the inheritance in a will, for example, in which the figures claiming the obligatory part are not included, will still be transferred in a minimal part to these persons. At the same time, this share can be significantly increased. For example, if minor children participate as successors in the original line, then their share of the inheritance will be significantly larger. The amount of property that they can receive, of course, is also directly related to the number of other heirs in the same line.

Losing a share

Now we need to touch upon the situation in which successors who have the right to an obligatory part in the testator’s property may be deprived of this part. This provision in the legislation appeared recently. Its essence is that a successor counting on such a share may be deprived of it if the property under the will is transferred to a person who was used by him as a place of residence or an object considered the main source of income for the life of such a person.

Legislative defect

Due to the vagueness of the wording of what a residential premises is, in practice quite a lot of questions may arise. If we turn to the norms of housing legislation, then by housing we can mean not only houses and apartments, but also other buildings. It is also not entirely clear from the legislative source whether the heir living in the testator’s home must live there permanently or whether temporary registration and residence is sufficient. All this provides loopholes for all sorts of tricks of unscrupulous heirs and, in fact, does not provide an understanding of how and what right to an obligatory share in the inheritance can be protected in such a case.

When establishing the share in question, the judicial authority has the right to take into account and take into account the financial condition of the successor who has the right to it. If his situation is satisfactory and he has a place to live, then the court is able to either completely take away the obligatory share from the successor or reduce its size.

It is noteworthy that, unlike a person claiming an obligatory share in the inheritance, a successor under a will is not subject to mandatory property analysis. In this case, the court must proceed from the priority of fulfilling the last will of the deceased.

How to calculate shares in inheritance

Potential heirs are most often concerned about the issue of the share due by inheritance. No one wants to calculate it on their own, because this procedure requires not only accounting skills, but also knowledge of inheritance law. In reality, everything turns out to be not so difficult. How to calculate the share of each applicant when receiving property?

Division of property upon inheritance by will

According to the Civil Code of Russia, inheritance by will implies a certain circle of heirs, limited by the contents of the document. A will is a unilateral transaction, an order of the testator regarding his property in the event of death.

The powers of the testator regarding the determination of successors are practically unlimited:

• He has the right to appoint one or more heirs (even if they are not his relatives).
• The heir can be a legal entity and even the state.
• The testator can “appoint” a second heir in the event of the death of the first.
• He can also forgive those recognized as unworthy heirs (they still receive part of the inheritance).

If there is only one heir, then he receives all the bequeathed property of the deceased. If there are several of them, the property is divided into equal parts. For example, if there are 5 heirs under the will, but there are no obligatory heirs, then each of them will receive 1/5 of the inheritance.

In addition to property, the debt obligations of the deceased are also inherited. The responsibility to pay debts falls on the shoulders of those to whom the property was transferred.

Share in inheriting property by law

If the testator did not leave a will for some reason, all his material and non-material benefits are inherited by law (on a general basis). In this case, all relatives can claim the property, but the law provides for special inheritance lines.

There are 9 inheritance queues in total. Each subsequent order receives the right to property only if someone or all of the previous order has renounced their part or is no longer alive.

All property is also divided in equal shares, that is, if there are 4 heirs, each of them will receive ¼ of the share. An exception is those who inherit by right of representation (grandchildren, etc.). They receive an equal share of the share that should have gone to their relative.

For example, the testator’s daughter dies and does not have time to accept the inheritance. She has two adult daughters, who now have the right to their mother's inheritance, left to them by their grandfather (testator). Since there are only two of them, they each receive half of the property due to the mother.

Mandatory share in inheritance

To protect needy categories of citizens, the law provides for a special condition for receiving an inheritance: a mandatory share. The following persons can apply for it:

• Minor children of the deceased (if they are not emancipated)
• Those who were dependent on the testator for more than a year (at the time of his death)
• Disabled heirs of the first priority (parents and children, as well as spouse)
• Parents are pensioners (those who have reached retirement age, and not retired due to specific working conditions).

Mandatory heirs usually receive their share from the non-probate portion of the property. If all of the testator's property is described in the will, the obligatory shares are allocated to the detriment of the heirs under the will. When inheriting by law, compulsory heirs receive equal shares with all other applicants.

The share of compulsory heirs in the presence of a will is calculated according to the formula: half of the property due to them upon inheritance by law.

Moreover, if the heir should receive a certain part according to the will, his shares are added up.

You can always refuse the obligatory part, but you cannot do this in favor of another heir.

Example of calculating the share of heirs

For clarity, let’s look at the following example and use a virtual calculator: citizen K. leaves a will in the name of his son and bequeaths to him an apartment (the only property of the deceased). In addition to his son, the deceased has a wife, a minor daughter, and parents (disabled due to age). The cost of the bequest is 3 million rubles.

The daughter and parents are obligatory heirs in this situation. However, pensioners renounce their obligatory share of property. The wife has no rights to inheritance at all.

It turns out that the inheritance will be distributed between the daughter and son of the testator. The daughter's obligatory share is equal to half of what she would have received if inherited by law. Since there would be 5 successors by law and they would receive equal shares, the daughter’s share would be 1/5. Therefore, the obligatory part of the girl’s property is 1/10.

The share renounced by the testator's mother and father passes to the heir under the will, the son. He was to inherit the entire property in full, but his sister's portion was deducted from his inheritance. It turns out that the son’s share is 9/10.

Therefore, the daughter of citizen K. receives: 3,000,000. 10 = 300,000 rubles.

Son: 3,000,000. 10 * 9 = 2,700,000 rubles.

Despite the fact that calculating the shares of inherited property is quite simple, if necessary, it is still better to seek help from a specialist competent in this matter.

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Mandatory share in the inheritance: what is the size and who will get it?

General legal and legal points

Can a citizen, by will, leave everything to some and nothing to others? According to the current law in the Russian Federation, namely Article 1149 of the Civil Code of the Russian Federation, no, it cannot. The law defines a number of persons whose mandatory share must be taken into account in any case. Essentially, these are those who will not be able to live without the provision they received from the testator. Check out this article. which describes in detail who has a mandatory share in the inheritance.

These are minors or disabled children (both biological and adopted), disabled husband or wife, parents (or adoptive parents). These are also retired relatives who cannot work, or have group I, II, or III disabilities. Dependents who lived for at least twelve months on the support of the owner of the will. Moreover, the fact of dependency can be recognized regardless of whether these people are close relatives of the deceased or not. The basis is that he provided for them, his help was not one-time, but systematic, and it was from it that these people lived.

Adopted children have exactly the same rights as natural children. Therefore, establishing kinship is of little importance.

In Russia, people are recognized as disabled according to age (women over fifty-five years old and men over sixty) and health (according to the assigned disability group). Citizens with the right to early retirement are not considered disabled.

Citizens are called minors. who have not yet turned eighteen years of age. According to the legislation of the Russian Federation (Federal Law on Labor Pensions No. 173-FZ), all minors are disabled.

How is it determined and calculated?

Mandatory is that part of the inherited property that applicants for the inheritance have the right to demand to be given to them, no matter whether the deceased wanted it or not. Its calculation is made on the basis of an assessment of the value of the testator’s entire property (this applies to both what he described in the will and what he forgot to mention). This also includes furnishings and household items (for example, furniture, kitchen appliances), as well as special rights (for example, copyrights).

What to rely on when making calculations? It all depends on when the will was written. If the document in which the deceased expresses his will was written before the first of March two thousand two, then the norms of the legislation of the RSFSR (Article 535 of the Civil Code) still apply to it, and the mandatory minimum is two-thirds of the part that the heir can take by law.

The thing is that it was on March 1, 2002 that Part 3 of the Civil Code of the Russian Federation came into force. which regulates the order of shares. And if the will was written after this date, then the obligatory share, in accordance with the new law, is no less than 1/2 of the legal one.

If we put this into dry numbers, we get the following formula:

1/4 (or 2/3)* 1/N, where N is the number of heirs with the right of inheritance by law.

If part of the property was indicated in the will document, but part was not, the obligatory share is awarded from the unmentioned part, even if this reduces the rights of the remaining claimants. If all the property is bequeathed, or the unbequeathed share is too small to satisfy the obligatory share, when calculating the latter, the bequeathed part is also taken.

The obligatory part includes all property. which is claimed in any order by the heir with the right to a compulsory share.

You can lose your inheritance. This decision is made by the court if the heir is found unworthy, which is provided for in Article 1117 of the Civil Code of the Russian Federation. For example, if he committed illegal actions against the will-maker or other claimants to the inheritance. This is worth remembering for those who are thinking about increasing their piece at any cost. For example, physically eliminating other candidates or deceiving a millionaire relative to change his will.

Minimum and maximum thresholds

The maximum ends where the rights of other candidates begin, and the minimum is determined by law. As already mentioned, if the will was written before March 1, 2002. then the obligatory share must be at least two-thirds of what would have been allocated by law. And if after, then it cannot be less than half.

Thus, it turns out that: the total amount of property is divided by the number of all heirs provided for by law:

• by right to an obligatory share
• according to the law, if there were no written expression of will at all
• by right of representation.

The resulting portion is divided in half. The final result will be the mandatory minimum.

Who has the right to increase or decrease the size of the share?

The obligatory share can be increased or, conversely, reduced (or taken away altogether) only through a judicial proceeding. Moreover, this decision can be challenged by appeal. You should have time to file an appeal before the statute of limitations for inheritance disputes expires.

If the issue concerns inheritance, then even a person savvy in legal matters is unlikely to be able to take into account all the nuances and prove that he was deprived. That is why it is better to invest in the services of a professional lawyer when questions arise.

Practical examples of calculating the mandatory share

Let's give a specific example. A citizen died, whose entire property was a separate apartment. He bequeathed it to his son and brother. At the time of opening the inheritance, it turned out that there was also a widow aged 58 years, and the son was an adult and able-bodied citizen. Whoever is entitled to what will first proceed from the law. That is, the first priority applicants would be the wife and son, who would each receive an equal half (Article 1142 of the Civil Code of the Russian Federation). As for the brother, in the absence of a will he would have no right to anything at all. Thus, the widow should receive half of half of the total property. That is, one quarter.

For the remaining three quarters, the son and brother will receive a certificate of the right to inheritance according to the will in equal parts.

Or another example. A citizen dies, all of whose property (apartment) was bequeathed to the citizen with whom he cohabited. However, there remained a forty-two-year-old son and a fifty-six-year-old daughter. Their mother cannot be considered an heir, since the deceased was divorced from her. What does the daughter have the right to? If it weren’t for the presence of a will, she would have claimed an obligatory share - together with her brother, they would have received half of the property. As a result, the daughter has the right to a fourth share of the apartment.

Conclusion

If you have something to pass on by inheritance, you should not leave your descendants to fight for a richer piece - things could lead to bloodshed. It is better to draw up a competent will with the participation of a trustworthy lawyer, so that there are no grounds for invalidating the will. And if you yourself find yourself among the heirs and it seems to you that you have clearly been deprived, it is better not to fight for the truth yourself. Here, again, a lawyer will help you, who will definitely identify and prove in court that your rights have been violated.

The procedure for inheriting a compulsory share by law

Algorithm of actions

A standard scheme that will help you inherit an obligatory share according to the law:

1. Establish the fact of the death of the testator.
2. Calculate the required share.
3. Prepare documents on the social status of a disabled person or a dependent.
4. Write an application for acceptance of inheritance from a notary.
5. Submit documents and proof of status.
6. Pay state fees and other expenses.
7. Obtain a certificate of inheritance.
8. Declare the rights of the owner to the Rosreestr authority, a bank or the traffic police.

It happens that the inheritance has already been divided, but the right to an obligatory share is not taken into account. In this case, you will have to prove your case in court . The applicant will have to collect evidence, file a claim to contest, pay the state fee and achieve a fair division. Next, you need to contact a notary and wait for the certificates to be reissued.

Please note that even if the inheritance has already been divided, the notary will not be able to revoke the certificates without the consent of the other heirs. Formally, you will have to obtain a refusal from the notary, and then go to court with it - the plaintiff will receive a court decision in order to act within the law.

Documentation

The list of documents may vary depending on your case.

But in general, the documentation package includes:

• death certificate of the testator - if other heirs have not given a copy to the notary;
• applicant's passport;
• grounds for inheritance (dependants - certificate of residence, court decision; disabled - birth/marriage/adoption certificate, pension certificate, certificate from place of study; disabled - ITU conclusion, document on disability);
• archival extract from the house register;
• power of attorney to conduct business + copy of representative (depending on the situation);
• property appraisal report - issued by Rosreestr or a private company;
• documents on the testator's assets - registration, legal and technical;
• receipt of payment of state duty.

The main emphasis is on the evidence base in favor of inheritance. Dependents and disabled citizens must prove that they have full right to the obligatory share. You will have to visit many authorities: social service, guardianship authorities, BTI, “passport office”, Rosreestr, a branch of the Federal Property Management Agency, the migration department at the Ministry of Internal Affairs, and also make inquiries at the place of study and the Pension Fund.

State duty, expenses

Recipients of a compulsory share in inheritance by law pay a state fee - 0.3% of the price of the property . At the same time, you will have to pay for the technical and legal work of the notary. Prices depend on the region and the policy of the notary office.

Low-income categories of the population can count on benefits and indulgences - this includes children, dependents, the disabled, and families of those killed in the line of duty. If the heir is disabled, he does not pay the entire amount, but 50% of the state duty for entering into an inheritance.

Refusal to award a mandatory share

If the testator has not taken into account the interests of the obligatory recipient, then he has the right to protect his interests in court. In most cases, the court protects the rights of socially vulnerable categories of citizens.

In extreme cases, the law provides for the possibility of refusing to award a part to a compulsory heir. Such disputes are resolved in court.

The heir under the will can initiate the hearing of the case. However, it is necessary to provide compelling arguments to substantiate the claims. Otherwise, the court will refuse to satisfy the claim.

Deprivation of the obligatory share may occur due to the actual use by the heir under the will of the disputed property during the life of the testator. Whereas the applicant for the obligatory part had no relation to the property. However, the court will take into account not only this fact, but also the property status of citizens.

Can a compulsory heir lose his share for other reasons? Yes. If the beneficiary or his parent is recognized as an unworthy heir, then he is excluded from inheriting the property of the testator (Article 1117 of the Civil Code of the Russian Federation).

Features and nuances:

Can an unworthy heir inherit an obligatory share?

Often, even during the life of the testator, quarrels arise between relatives. It comes to the point that some of them are deprived of their rights to inheritance - they are recognized as unworthy heirs (Article 1117 of the Civil Code of the Russian Federation). In fact, they have nothing to do with the property of the deceased. However, it happens that unworthy heirs lived with the deceased and remain in the status of disabled people. What to do in this case with the obligatory share?

The law stipulates that unworthy heirs lose any rights to a compulsory share . If a relative managed to remove the status of “unworthy” and corrected himself before the opening of the inheritance, his right to inheritance is returned to him.

Example:

A 3-room apartment is being inherited - the mother and wife of the deceased are among the applicants. The testator's father was recognized as an unworthy heir due to non-payment of child support. Moreover, the father did not take the baby and mother from the maternity hospital - which was a good reason to deprive him of parental rights. This means that he cannot receive an obligatory share as an heir of the first line of kinship by law. Even if an unscrupulous father goes to court and proves that he has retired, he will not be able to receive the “son’s” property.

Waiver of mandatory share

Heirs can disclaim property without any restrictions. However, the heirs cannot assign the obligatory part of the property to other persons. Refusal can only be absolute. The non-inherited part of the property is divided among the remaining relatives.

Is it possible to refuse part of the property of a minor heir? Yes. The child's legal representatives will need to obtain appropriate permission from the guardianship authority. An application for refusal of inheritance must be submitted within 6 months. The notary draws up a recalculation and includes the refuser’s share in the property of other heirs by law.

Is it possible to refuse an inheritance?

The law does not oblige heirs to accept property. They may waive their rights to the obligatory share. However, the refusal can only be absolute. That is, without specifying a specific beneficiary. The law does not provide for a targeted waiver of the obligatory share (Article 1158 of the Civil Code of the Russian Federation).

Relinquished property is divided as follows:

• if the testator did not provide a specific share for the obligatory heir or did not take into account his interests at all, then the property is divided equally among the other heirs under the will;
• if the testator indicated the share of the obligatory recipient, then the property passes to the heirs by law.

An application for renunciation of inheritance must be submitted within the time period allotted for accepting the property. Revocation of a refusal application is not allowed (Article 1157 of the Civil Code of the Russian Federation).

Inheritance in the presence of an inheritance fund

Since 2021, the testator has the opportunity to include in the will a requirement to create an inheritance fund. The foundation is the equal heir of the deceased.

The owner stipulates in the will:

• the amount of funds that is transferred to the fund;
• procedure for managing money.

Funds may be donated to charity or other purposes. One option is to establish regular payments for persons entitled to an obligatory portion of the property.

Important! The recipient can choose only one option: registering a mandatory share or receiving payments from the inheritance fund.

Who is the obligatory heir in the presence of a will?

Mandatory heirs are socially vulnerable categories of citizens who cannot provide for themselves due to age or health. They receive a share in the deceased's property regardless of the terms of the disposition.

Recipients of the obligatory share

Children

Requirements for children:

• the child’s status must be established legally (establishing paternity, registering birth);
• a citizen was adopted by a court decision or a resolution of the district guardianship department ( before 1996 );
• minor age ( from 0 to 18 years );
• disability (disability of 1-3 groups , full-time education at the age of 18 to 23 years ).

Important! The emancipation of a minor is not a basis for denial of the obligatory share. The Civil Code links rights to age, and not to legal capacity.

Disabled spouse

Regardless of the terms of the will, his spouse can receive a share of the deceased’s property.

However, it must meet the following requirements:

• the presence of an official marriage union (after a divorce, a citizen loses this right);
• incapacity for work (disability 1 - 3 groups ).

Disabled parents

Parents must meet the following conditions:

• officially confirmed family relationship (establishing paternity, registering the birth of a child);
• registration of adoption in accordance with the procedure established by law;
• reaching retirement age;
• presence of disability of 1 – 3 groups .

Important! The basis for denial of rights to the property of a deceased child is deprivation of parental rights in relation to the testator or cancellation of adoption.

Disabled dependents

Let's consider who has the obligatory share. A special category of recipients are dependents. These are disabled or minor citizens who were supported by the deceased owner during the last year of his life.

Requirements for dependents:

1. Relatives. Minors or disabled citizens (brothers, sisters, aunts, uncles) who received maintenance from a citizen for 1 year before his death.
2. Strangers. Minors or disabled citizens who lived with the testator for 1 year before his death, were supported by him and ran a joint household.

The following may act as dependents - not relatives:

• adopted children;
• minors or disabled wards;
• stepsons and stepdaughters;
• roommates.

Is it possible to issue a waiver?

This possibility is provided for by current Russian legislation. To do this, you must be the legal heir. They renounce exclusively their share, taking into account the terms of entry. It is allowed to write a waiver only during the period of implementation of inheritance proceedings. A conscientious objector will no longer be able to regain his rights even through the courts if the decision was made voluntarily in sound mind and without violations.

In whose favor?

It is allowed to indicate in the disclaimer specific persons entering into the inheritance. These are people who are claimants by will or by law. The property cannot be assigned to third parties not related to the agreed share. And if a successor is not appointed, the values ​​are returned to the general inheritance, subject to distribution among legal successors by law or by will, if it is executed correctly.