The right to an obligatory share in the inheritance is fixed by the civil legislation of Russia. For example, norm 1149 of the Civil Code defines a group of persons to whom such a share is due regardless of whether such persons are heirs by will, by law or not at all.
The narrowing of testament freedom
In a detailed study of civil law, it can be determined that there is a group of people to whom inheritance law provides an opportunity to receive an inheritance, regardless of whether there is a testator's testament or not. The rules of law that determine the mandatory share are mandatory, that is, they do not allow any changes that require unquestioning submission. The obligatory share in the inheritance during the will is also regulated by the articles of the Civil Code of the Russian Federation, which restricts the freedom of the last will of the testator. In particular, norm 1119 of this legislative document expressly provides for such a restriction. Heirs who are supposed to have an obligatory share in the inheritance at will or under the law are called necessary or obligatory successors. They cannot be deprived of the rights to the discussed share, except for the cases that will be described below.
Persons who are provided with an obligatory share
The Civil Code defines the circle of persons falling under the definition of heirs with a mandatory share. So, it is quite possible to subdivide these individuals into two categories, which will correspond to the descending and ascending lines.
- Children of the deceased testator who have not reached the age of eighteen, as well as children of full age, but disabled. This category of persons includes, in addition, the spouse (a) who is disabled.
- Parents of the testator who are disabled. Additionally, persons who were kept by the testator are included in this category by the legislator. These dependents may be in blood contact with the deceased, or they may not be.
The presented list of people with whom a mandatory share of inheritance by testament or law is required is complete. Apart from them, no one can use such a right. That is, they are solely successors of the first stage, and may also be additional heirs of other lines or 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 the required share. It should be noted here that descendants by right of representation cannot claim an obligatory share.
Additionally, the following point should be taken into account. If the children of the testator were adopted after his death by other persons, then as a result of such adoption they do not lose their right to an obligatory share, because the relations of the parent and the child at the time of opening the inheritance were not terminated.
Characteristic of law
The privilege for an indispensable share is not at all connected with the obligation to live together or with the joint management of the heirs applying for an obligatory share with the deceased. But there is an exception - this rule does not apply to disabled dependents.
The main characteristic that an obligatory share in the inheritance possesses in the presence of a will, as well as in the absence thereof, is that the right to it is in no way dependent on the will of the other heirs. And this applies not only to the heirs by law, but also by will.
Acquisition of required share
The legislation provides that the right in question must be exercised regardless of the order of the respective successor. Moreover, the absence or presence of a will matters. So, if there is no such will, then the successor, who owns the basis for the mandatory share, participates in inheritance along with the line that is being called up. If such a will does exist, then this successor will take part already with the heirs of the will. And in those cases when only a certain amount of property is transferred by inheritance, and all other good is divided between successors by law, the heir who receives the mandatory share will be called upon to inherit with the successors in the will and with those who receive the property of the deceased by grounds of law.
How to determine size
An example of calculating the required share in the inheritance is absolutely not complicated. Legislative acts determined that the smallest amount of such a share is calculated by halving the size of the share that comes out when dividing the total hereditary mass by the number of successors under the law, who can be called to inheritance if there is no will. In this calculation, it is also necessary to take into account successors by right of representation and the number of heirs applying for an obligatory share. With the help of such a calculation, it is easy to determine what is the required share in the inheritance.
Mandatory share advantage
The legislator determines that a successor who has the right to an obligatory share has an undoubted advantage over all other heirs. This advantage, in particular, is expressed in the way of satisfying his rights. So, the mandatory share in the inheritance of a will must be satisfied first from that part of the property that is not transferred by will. In the event that such property is not enough, then the mandatory share should be satisfied from the bequeathed part of the inherited property. This advantage is due to the state protection of the most vulnerable people, including socially.
The obligatory part of the inheritance guarantees that the successor, having the right to it, will receive the minimum amount of such a share of the amount of the property of the testator, which was not bequeathed. Such a share must be determined before the determination of the shares of other successors of the queue called for inheritance. Even the fact that the establishment of a mandatory share may adversely affect the share of the remaining heirs (they can significantly decrease or even disappear completely) does not reduce the rights of the heir claiming a mandatory share.
Minimum Guaranteed Size
The abovementioned persons are guaranteed by civil law the minimum size of the inheritance through the approval of the required share. What does it mean? This implies that the mandatory share in the inheritance in a will, for example, which does not include figures claiming the mandatory part, will still be transferred to these persons in a minimal part. At the same time, this share can be significantly increased. For example, if minor children participate as successors of the initial stage, then their share in the inheritance will be much larger. The value of the property that they can receive, of course, is also directly related to the number of other heirs of the same line.
Share loss
Now it is necessary to touch upon a situation in which successors with the authority to the obligatory part in the estate of the testator may be deprived of this part. This provision in the norms of legislation appeared recently. Its essence is that a successor counting on such a share may be deprived of it if the property is transferred by will to the person who used it as a place of residence or an object considered the main source of income for the life of such a person.
Legislative flaw
Due to the vagueness of the wording of what a living room is, in practice a lot of questions may arise. If we turn to the norms of housing legislation, then we can mean housing 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 housing should live there permanently or if temporary registration and residence are sufficient. All this provides loopholes for all kinds of tricks of unscrupulous heirs and, in fact, does not give an understanding of how and what right to an obligatory share in the inheritance can be protected in such a case.
When establishing the interest in question, the judicial authority has the right to take into account and take into account the material condition of the successor who has the right to it. If this situation is satisfactory for him, there is a place to live, then the court is able to completely take away the required share from the successor and reduce its size.
It is noteworthy that, unlike a person who claims to be a mandatory part of the inheritance, a successor by will is not subject to mandatory property analysis. In this case, the court must proceed from the priority of the execution of the last will of the deceased.
So, here, perhaps, is all you need to know about the required share in the inheritance.