Is it possible to refuse the obligatory share of inheritance?

1. Determining the size of shares
2. Conditions for increasing the shares of heirs
3. Determination of shares in inheritance in court

Having received the property of a deceased relative as an inheritance, the heirs will have to determine the shares of this property to which each of them is entitled.

In each specific case, this process occurs differently. This depends on many reasons: on the composition of the inheritance, the number and composition of the group of heirs, and the relationships between them. Moreover, the latter circumstance plays not the least role.

In our article we will talk about determining the size of the heirs' shares, consider the conditions under which the heirs' shares in the inheritance can be increased, as well as about determining the shares in the inheritance in court.

Mandatory part

The Civil Code of the Russian Federation contains the principles of inheritance that apply throughout the country. The right of inheritance is vested in capable citizens who have reached the age of eighteen. You are allowed to dispose of property at your own discretion. Property can be bequeathed not only to relatives, but also to persons other than them.

To draw up a will, you must contact a notary. He reports that there are certain categories of citizens who cannot be disinherited. If a person insists on accepting the expression of will without indicating such persons, the notary has no right to refuse. Successors whose rights are violated have the right to demand the allocation of inherited property. It represents a certain amount of property that the heirs would receive if there was no will.

Is it possible to refuse the obligatory part of the inheritance?

The heir may refuse to accept the part of the inheritance due to him by law. In this case, the division of the entire inheritance is carried out according to the last will of the deceased. For example, if a person of retirement age is sufficiently wealthy, has his own home and a profitable job, he may not need to receive additional privileges. Although, according to the law, he belongs to the disabled category of citizens who have the right to an obligatory share of property.

At his own request, the testator may waive the right to receive property, but this decision must be final. You should think carefully about everything and weigh the pros and cons, since you will not be able to change your mind.

Applicants under 18 years of age cannot apply for a waiver on their own.

Right to share

You can bequeath your property to anyone. The state protects the rights of certain categories of citizens who have the right to a share of the inheritance.

The following circle of persons entitled to compulsory inheritance is distinguished:

1. Minors or adults, but disabled children of a deceased citizen;
2. Disabled parents;
3. Disabled spouse of the testator;
4. Disabled persons who were dependent on a deceased citizen.

From the presented list it is clear that the rights of persons who are unable to provide for themselves for one reason or another are protected. Particular attention is paid to the minor children of the deceased - both biological and adopted. They are considered disabled by default. The rights of the child are of particular value to the state. The interests of minors are subject to increased protection.

Who can apply for the mandatory part?

The obligatory share is the minimum part of the inherited property, which is provided by law for a certain category of citizens, regardless of the will of the testator stated in the will. The concept of a compulsory share is applied only in cases where inheritance occurs according to a will, while by the will of the testator, some categories of citizens (financially and socially unprotected relatives of the testator) are completely deprived of an inheritance or are provided with less than the minimum required by law.

The circle of relatives entitled to the obligatory part is clearly defined by law - it is impossible to limit or expand it. These include the following persons:

• disabled widower or widow of the testator;
• minor or disabled children of the testator (natural and adopted);
• disabled parents of the testator (adoptive parents);
• disabled dependents of the testator (relatives classified as heirs by law from the 1st to the 7th stage inclusive), who were dependent on him for at least 1 year before the death of the testator, regardless of whether they lived together with the testator or not, if they are not specified in will and are not called upon to inherit.

In the Russian Federation, civil legislation recognizes citizens under 18 years of age as minors, women over 55 years of age and men over 60 years of age, as well as disabled people of groups I, II, III, as disabled.

Thus, the main condition for receiving a compulsory inheritance share is incapacity for work due to minor or old age, as well as health status. Moreover, the disability must be permanent and not temporary.

For example, a pregnant wife cannot claim part of the inheritance based solely on temporary disability due to pregnancy, but the testator’s conceived but unborn child will receive part of the inheritance immediately after birth.

Thus, the legislation, by establishing such a concept as a compulsory inheritance share, took care of those categories of citizens who, for good reasons (health, young or old age), cannot take care of themselves properly, and therefore should not be deprived of inherited property.

Features of persons entitled to a share

A child conceived by the testator may be born after the death of his father. Such a child will also be a legal successor and have the right to receive a share in the inheritance. The main condition is that the heir must be born alive. Life expectancy is not important, even if it is a few minutes. If a child dies in the womb, it does not acquire such a right and is legally recognized as non-existent.

Disabled legal successors include persons with disabilities of groups 1, 2 or 3. Their age does not matter; the fact that they have a disability is important.

The parents and spouse of the deceased are recognized as disabled upon reaching a certain age (at the time of the death of the testator):

1. For men, this age is 60 years;
2. For women - 55 years.

The parents and surviving spouse will have a claim if they are disabled.

Dependents of a deceased citizen are completely disabled persons whom the testator provided for at least a year before his death. Then they can claim a mandatory share.

Disability may be due to age or illness. The latter takes into account the permanent disability.

When can you refuse part of an inheritance?

The right to renounce an inherited share of property arises after the death of the testator or his recognition as dead in court (Article 1157 of the Civil Code of the Russian Federation). A person who is entitled to a certain share in the inheritance has the right to refuse within 6 months from the date of opening of the inheritance.

The legislation provides for the possibility of renouncing an obligatory share in the inheritance in favor of one of the heirs who is such by law or by will. However, this does not apply to the compulsory share; its inheritance occurs under special conditions - in case of refusal, it is not allowed to indicate the persons in whose favor the property should pass.

If the heir is reflected in the will

Typically, the testator includes mandatory successors in the will, dividing property between children, or refuses the opportunity to dispose of property, and then inheritance is carried out according to the law, based on the share ratio. If the testator bequeathed something to a mandatory successor, part of it may not comply with legal requirements.

When the part is smaller, the missing part is taken from the rest of the hereditary mass. First, from property not reflected in the will. If this is not the case, there may be talk of reducing parts of other persons.

If an inheritance is bequeathed that exceeds the norms established by law, its rights are considered unviolated.

For whose benefit is the refusal written?

It is possible to refuse the obligatory share in 2 situations:

1. The refusal is written for the benefit of the legal successor, indicated by the testator in the document or the successor, according to the order.
2. Formation of a written statement of unconditional refusal. In this case, names are not included.

The following categories of citizens who have legal rights to call in an inheritance case if a refusal is written:

• heirs appearing in the text of the document of will;
• legal successors or by nomination;
• transfer of inheritance rights from a deceased applicant who died after the initiation of the case to his direct descendants. This is called hereditary transmission.

A citizen entering into inheritance of a property mass can write a statement of refusal, but only in relation to those persons listed above. By the way, these heirs should not be recognized by the court as unscrupulous.

Drawing up an application

The process of re-registration of inheritance rights occurs according to the following algorithm:

• collecting documents to apply to a notary;
• writing, in the presence of a notary specialist, an application;
• sending documents to the department where the case was opened.

The following requirements apply to the application:

• Availability of information about the testator, applicant and the person for whose benefit the refusal is written.
• Written application. Due to the fact that a notary is present, his endorsement is not required. If the document is sent by mail, it must be certified by another notary representative.

The list of required documents for writing an application is as follows:

• Personal passport.
• Certificate-extract about the residential address of the deceased testator.
• Written consent from the guardianship authorities if the applicant is incompetent or under 18 years of age.
• Papers indicating a relationship with the testator. Relevant for inheritance by law.

After the notary specialist accepts the heir’s waiver form, he loses all rights to the property mass. It will not be possible to renew them unless there was no impact on the person. This fact will have to be proven in court.

The required package of documents should be sent to the notary office where the inheritance case was initiated. Article No. 1159 of the Civil Code of Russia states that this can be done by Russian Post, through an authorized representative or in person.

The actual acceptance of a mandatory share does not mean that the successor can refuse it. To do this, you need to submit an application to the court within the specified time frame and provide evidence. If you miss the six-month period allotted for the heir to assume legal rights, it is necessary to file a claim in court to restore the lost rights. But for this you must have valid circumstances (Civil Code of Russia, Part No. 2, Art. No. 1157).

Mandatory share size

The obligatory part of the inheritance must be at least 50% of what the heir would receive if inherited by law. This includes the entire inheritance mass, not even reflected in the expression of will.

It is possible to reduce the property of other legal successors if the part of the obligatory legal successor is too small or not allocated. Such a procedure is undesirable, since it is carried out by infringing on the rights of the remaining heirs. Initially, they try to form the missing parts from property that has not been certified by a notary. This is only possible in court.

Calculation of the volume of the mandatory part

The Civil Code of Russia (Chapter No. 63) states that the obligatory share in the property estate for the successor cannot be less than 50% of the share that would be due to him as an heir by law in the absence of a will.

When the document of will contains a prescription for some part of the mass, and the other does not appear in the order, then the allocation of the obligatory share will occur from the untested property. If a shortage is identified, the amount will be covered from the bequeathed property.

Let's look at an example: The testator indicated in the document the main successor - a neighbor and a daughter who was under 18 years old. The property will be divided equally between them. There is no other property. However, the testator also has a disabled daughter from his first marriage, who lives with her mother. The deceased had no other relatives.

Acting within the framework of the law, the second daughter can claim the mandatory share of 50% if the testamentary document had not been drawn up. The legislator established the order of successors, and in this case (by law) both daughters are the main heirs.

As a result of the court's consideration of this situation, the disabled daughter receives ¼ of the house, because this is ½ of the inheritance that would have been due to her if the testator had not written the order.

Refusal to allocate a mandatory share or its reduction

The concept of “obligation” implies that a person does not have to receive something. Upon inheritance, he must receive a certain amount of property. The testator's wishes are not taken into account. It would seem that it is enough to file a claim by presenting documents confirming the right to receive an obligatory share in the inheritance.

In reality the situation is different. Going to court does not mean that part will be allocated. The court is allowed not only to reduce the share, but also not to allocate it. The financial situation of legal successors is examined. If the applicant is sufficiently wealthy and does not need part of the deceased’s property, but the financial situation of other persons is deplorable, there is a high probability that the court will refuse. A similar situation arises when inheriting real estate, on which the heirs under the will permanently resided, and which was not used by the pretending successor. Similar circumstances are taken into account when inheriting movable property. The court will examine the relationship between the testator and the heirs and their family ties. If the deceased did not indicate this or that person when expressing his will, the reason may be conflicting relationships.

A separate category of persons consists of unworthy heirs. Their definition is contained in Part 4 of Art. 1117 of the Civil Code of the Russian Federation. Unworthy successors include:

1. Persons who tried to obtain the property of the deceased illegally;
2. Heirs illegally trying to increase their share;
3. Persons who committed a crime against the testator;
4. Persons who have been entrusted by the court with the obligation to support the testator, if they have evaded the assigned obligation;
5. Parents deprived of parental rights.

For this category of persons, the default rule is that they do not have the right to inherit.

How not to give away an obligatory share in an inheritance

Paragraph 4 of Article 1149 of the Civil Code of the Russian Federation provides a basis for reducing or even depriving an heir of the inheritance share due to him.

If the heir under the will begins to challenge the right of the legal heir to the obligatory share, if he proves that the inherited property is his only place of residence or source of livelihood, and the legal heir has never lived with the testator, has never used the inherited property, has no needs, the court may reduce the size of the mandatory share or cancel it altogether. In this case, the court will examine in detail all the circumstances of the case, take into account the financial situation of the heirs under the law and the will, and study the relationship and closeness with the testator.

According to paragraph 4 of Article 1117 of the Civil Code of the Russian Federation, unworthy heirs can also lose their inheritance share if it is proven in court that they tried to obtain or increase it illegally or committed a crime against the testator.
For more information about depriving unworthy heirs of inheritance rights, read the article “How to recognize an heir as unworthy.” Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
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Author of the article

Irina Garmash

Family law consultant.

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Waiver of mandatory share

The law requires the allocation of a mandatory share, but does not force the successor to accept it. A person who does not want to receive the part of the inheritance due to him has the right to refuse it in favor of other persons specified in the will. You cannot refuse in favor of others. Before filing a refusal, you should think carefully, since there will be no turning back - you won’t be able to cancel your expression of will.

The refusal of inheritance is submitted in writing to the notary who opened the inheritance case. The testamentary refusal states:

1. Giving up your part;
2. Renunciation of one's share in favor of other heirs.

They are almost the same in content. The difference is that in the second case, specific persons mentioned in the will are indicated. Due to such a refusal, the size of the inheritance of other legal successors increases.

Difficulties arise when a minor renounces part of the inheritance. This is not prohibited, but the procedure is much more complicated, since it requires obtaining consent from the guardianship and trusteeship authorities. They must make a conclusion about the advisability of the refusal and whether it will not infringe on the interests of the minor. The sale of property, part of which belongs to a minor, is carried out in a similar way.

When refusal is not possible

The Civil Code of the Russian Federation provides for cases when a ban is imposed on refusal of inheritance in favor of specified persons. They are specified in Art. 1157, 1158, 1159. In general, such cases can be generalized into 3 groups:

1. The property is escheatable. This is reflected in Art. 1157, 1151 Civil Code of the Russian Federation. If there are no heirs or they did not accept the inheritance, refused it or were found unworthy, the inheritance in the form of a residential premises, land plot or share in common property becomes the property of the state, and the residential premises becomes part of the housing stock for social use.
2. Inheritance is a mandatory share for citizens, the circle of whom is outlined in Art. 1149 and 1158 of the Civil Code of the Russian Federation. They are disabled children, parents and other citizens who have been dependent on the testator for at least 1 year, for whom he was the main source of financial assistance.
3. From property inherited under a will, if all the property of the testator is bequeathed to the heirs appointed by him.

In this case, the inheritance can be refused unconditionally, without specifying the persons in whose favor the property is transferred.

1. Refusal in favor of any of the specified persons, if there is a will and according to it, if the heir refuses the property, it passes to another heir, whose identity is previously established in the will of the deceased (clause 2 of Article 1121 of the Civil Code of the Russian Federation).

If desired, the heir will not be able to renounce part of the inherited property in the inheritance mass, since, according to Art. 1158 of the Civil Code of the Russian Federation, only the entire property can be inherited. For example, if the heir does not want to accept the debts of the deceased, this will mean that he renounces all inherited property.

Some practical recommendations

If there is a trial coming up, you need to prepare for any conflicts. When it comes to dividing property after the deceased, many relatives forget the rules of decency, trying to get the maximum. Before going to court, you should weigh the likelihood of your claims being satisfied and be prepared for the fact that such actions will cause dissatisfaction among interested parties. You can warn relatives in advance and find out their opinion.

Thus, inheritance under a will can create certain difficulties caused by the need to receive an inheritance. When registering the expression of will, it is necessary to reflect the obligatory legal successors, as well as bequeath to them in the prescribed proportions, so that the inheritance takes place without litigation and disputes.

What is a mandatory share

By compulsory share we mean part of the property of a deceased citizen, which is due to his minor or disabled relatives and dependents. The rule applies only if there is an order.

Expert opinion

Stanislav Evseev

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

When drawing up a will, the owner is obliged to take their interests into account. Otherwise, interested parties have the right to challenge the expression of will in court.

If at the time of drawing up the administrative document there were no mandatory applicants, then the order is drawn up in the general manner. However, on the date of opening of the inheritance, the notary will definitely check the composition of the beneficiaries (Article 73 of Law No. 4462-1). If he identifies compulsory heirs, he will take the necessary actions to allocate part of the property to them.

The right of mandatory applicants is satisfied:

1. At the expense of assets that are not specified in the order. Moreover, the share of the remaining legal successors is subject to reduction.
2. If such property is insufficient or absent, then the obligatory part is allocated from the property specified in the will.

Any disputes between heirs are considered in court. If one of the applicants goes to court, the notary will suspend the inheritance case. It will be resumed only after the completion of the trial, i.e. when the court decision comes into force.

Who is entitled to

Mandatory heirs

The definition of “Disabled citizens” is contained in the Federal Law of December 15, 2001 No. 166-FZ. These include:

1. Disabled children from childhood, 1, 2¸ 3 groups.
2. Persons who have reached retirement age (60–65 years). For residents of the North, the age threshold for men and women is 10 years lower.
3. College students are also recognized as disabled citizens. The only condition is that the form of training must be full-time. The maximum age of students should not exceed 23 years.

Is it possible to lose an inheritance?

You can lose your right to an obligatory part in the following cases:

1. Recognition of the heir as unworthy. The option implies unlawful behavior of the heir towards the testator. If the applicant has committed a crime, for example, caused bodily harm to a person resulting in death, then if there is a court verdict, he may be recognized as an unworthy heir. Such a citizen is excluded from inheritance. The law also applies to compulsory heirs.
2. Infringement of the rights of legal successors under a will. The option implies the impossibility of transferring property that the applicant under the will used during the person’s lifetime. The rule also applies to property that is the beneficiary's sole source of income. Under such circumstances, the heir under the will may apply to the court with a claim to refuse to award the obligatory share. However, you need to prepare strong arguments. Otherwise, the court will refuse to satisfy the stated requirements.

Example. Citizen V. went to court. The plaintiff asked to refuse to award the mandatory part to the defendant. Basis for the claim – the testator transferred his apartment to the plaintiff. The woman lived with her father for a long time. However, the testator was married at the time of death. His wife was disabled at that time. Therefore, she is entitled to a mandatory share. The widow never used the disputed property. She has her own apartment. The couple have not lived together for the last 4 years, but the divorce has not been officially filed. The plaintiff has no other housing. That's why her father signed the apartment over to her. In addition, the woman is expecting a child. The defendant did not admit the claim. The woman stated that she lived with her husband all the time. And the husband’s daughter lived in her apartment. Later, the girl began to demand that the apartment be re-registered in her name. So a scandal ensued, and the woman had to kick the plaintiff out. The spouses stopped living together because of the testator's daughter. The claim was granted. The court concluded that the defendant had not used the property for a long time. Whereas for the plaintiff the apartment was the only housing. (Decision of the Chernovsky District Court of Chita dated March 28, 2012).