Does the inheritance (inheritance mass) include the right of the testator to challenge and (or) apply the consequences of the invalidity of a void transaction? Challenging the validity of transactions by heirs Challenging a transaction of a surviving spouse by an heir

The distribution of the hereditary mass occurs according to the will or according to the law (in the absence of a testamentary document). The inheritance process does not always go smoothly, often applicants for the property of a deceased citizen believe that their rights are infringed and try to challenge the distribution of the estate.

Restoration of violated rights takes place in court on the initiative of interested parties (right holders whose rights are violated). Controversial situations, as a rule, arise during the distribution of hereditary property in accordance with the will.

The right holders, whose interests were not taken into account by the owner of the property, dispute the authenticity of the testamentary document and, accordingly, the right of ownership of the property by other heirs.

When inheriting by law, disputes arise when an heir appears, about whom it was previously unknown or information about his existence was deliberately hidden by other heirs.

The procedure for contesting a will is common. Heirs not specified in the will try to defend their rights to the property of the deceased citizen through the courts. The procedure for contesting a will is regulated by the rules of civil law.

A positive outcome of the case is possible only if there are good reasons:

the property specified in the will is not the property of the testator;
the incapacity of the owner of the property during the preparation of the testamentary document;
the document was drawn up in violation of procedural requirements (not signed by the testator, the date of compilation was not indicated, etc.);
the testator was subjected to physical or psychological pressure at the time of making the will;
the testator did not provide for the allocation of a statutory share for the heirs.

Only the legal right holders have the right to recognize the will as invalid after the death of the testator. To start the contestation procedure, the will must already be announced by a notary and brought to the attention of all interested parties.

Even if one of the heirs became aware of the existence of serious grounds for challenging the will (violations of the requirements of the law, procedural errors), the document can only be challenged after it has been officially announced.

In order to competently defend your position in court, it is necessary to stock up on irrefutable evidence confirming the facts of the invalidity of the will. In case of doubts about the capacity of the testator, it is necessary to initiate a post-mortem medical examination regarding the mental state of health of the testator.

Also submit medical certificates about the diseases of the testator, which did not allow him to adequately assess his actions during the period of drawing up the will.

Often, during the trial, evidence is considered that confirms or refutes the position of interested parties. If there are good reasons, the court decides to annul the will as a whole or in a specific part.

The legislation provides for situations of challenging the will after the acceptance of the inheritance by the right holders. In this case, the limitation period for inheritance cases is taken into account - 3 years from the date of death of the owner of the property. In certain situations, the period limitation period will be calculated from the moment when the right holder learned that his rights were violated when making a will.

A positive court decision entails the invalidity of all previously issued documents for hereditary property. Further, the process of distribution of the inheritance will be carried out by virtue of the law, regardless of the presence of a will. If the will is canceled in part, each specific case will be considered by the court separately.

When allocating a mandatory share to the right holder under the law, the inheritance property of the heirs provided for in the will will be reduced by the total value of this share.

Disputing an inheritance under the law

When challenging the inheritance under the law, an individual approach is applied, based on the specific situation. If the right holder is recognized as unworthy, the subsequent heirs receive the right to receive inheritance property within the order.

In judicial practice, there are cases when a decision was made to recognize all applicants for inheritance as unworthy of one of the queues. The right of inheritance in this situation passes to the owners of the subsequent succession lines.

Grounds for challenging an inheritance by law (unworthy heirs):

illegal actions of the applicant for the inheritance in relation to other right holders in order to more advantageously distribute shares;
the citizen claiming the inheritance did not participate in the life of the testator in last years his life;
the father and mother of a deceased citizen are deprived of parental rights in a judicial proceeding.

According to the requirements of Article 1117 of the Civil Code of the Russian Federation, heirs recognized by a court decision as unworthy are not entitled to claim to receive hereditary property.

Contestation of the compulsory share in the inheritance

A citizen who is the owner of property has the right to dispose of it at his own discretion. However, the law provides for exceptions to this rule when it comes to the deprivation of the right to receive the property of the deceased by close relatives or persons whose interests require additional protection from the state.

Mandatory Share Recipients:

young children (under 18);
disabled children;
husband or wife;
disabled parents of the testator;
persons who have been dependent on the testator for more than a year.

For the above category of persons, the law provides for protection in the form of the allocation of a mandatory share of property (50% of the part of the inheritance prescribed by law under the standard inheritance procedure), regardless of the will of the deceased.

Who Can Contest an Inheritance

The category of persons entitled to initiate the procedure for contesting an inheritance is specified in Article 1131 of the Civil Code of the Russian Federation. A person whose rights, in his opinion, have been violated, may be interested in contesting the distribution of hereditary property.

Heirs can apply to the judicial authorities with such statements:

first priority (spouses, parents, children of the testator);
second stage (sister, brothers, grandfathers, grandmothers);
third priority (brothers and sisters of the testator's parents, cousins and brothers);
fourth stage (great-grandmother, great-grandfather);
fifth stage (cousin grandfathers and grandmothers, grandchildren);
the sixth stage (cousins and uncles);
seventh line (stepmother, stepfather, stepdaughter, stepson).

It is important to know that the right to challenge passes to the heirs of the next stages in the absence or recognition of the unworthy of the primary copyright holders.

In the event that all right holders are removed from accepting the inheritance in a judicial proceeding, the estate of the owner passes to the disposal of the state.

Grounds for contesting inheritance

Issues of challenging the inheritance due to infringement of the interests of copyright holders are a common phenomenon. Judicial appeal occurs both in relation to the testamentary instrument and the procedure of inheritance by virtue of law.

The distribution of inheritance under the law is contested for the following reasons:

misprints in the formation of documents;
skipping the period of acceptance of the inheritance due to circumstances beyond the control of the will of the right holders;
the presence of heirs not provided for in the distribution of inheritance;
disclosure of previously unknown information from the life of applicants for inheritance.

It is possible to protest the distribution of the inheritance shares of the property indicated by the testator only after the will is declared invalid during the trial.

Legislation defines 2 types of challenging wills (by groups of grounds).

1 kind – challenge due to violation general principles deal processing:

an imaginary transaction (concluded for the sake of appearance);
sham deal (veiled procedure to hide the true intentions of the parties to the deal);
an agreement that violates the requirements of the law;
drawing up a document (will) in an incompetent state;
a will written while intoxicated or under the influence of drugs;
drawing up a testamentary document by a minor citizen;
drawing up a will by a person misled (fraud, forgery, etc.);
drawing up a will under the threat of physical and psychological violence.

Type 2 - disputing facts that are directly related to the execution of wills:

the absence of extraordinary factors, as a result of which there is a need to draw up a closed will;
a will written in emergency circumstances without witnesses;
sending a closed will to the notary's office, not confirmed by witness testimony;
gross errors were made in the preparation of the document;
lack of mandatory details of the testamentary document (date of compilation, signature, place of writing);
the will is certified by a person who does not have notarial powers;
multiple wills. The testamentary document that was written later than all the others is taken into account.

Contestation of inheritance in court

The right holder, whose interests are not observed in the distribution of the estate, has the right to apply to the judicial authorities to restore the violated rights.

For the correct and competent preparation of the appeal to the court, it is necessary to adhere to the following rules:

indicate the location of the court;
address of residence and date of birth of the participants in the process;
Full name, date of birth and death, address of the last place of residence (registration) of the owner of the property;
information about the notary who opened the inheritance case;
the document must be signed by the plaintiff indicating the date of compilation.

If there are doubts about the authenticity of the testamentary document, the heirs have the right to initiate a special examination.

This will require the following documents:

identity document of the initiator of the examination;
certificate of death of the owner of the property;
a copy of the testamentary document;
documents proving a family relationship with a deceased citizen.

Documents confirming the possibility of challenging the inheritance include:

medical certificates (on the testator's treatment of mental illness in a hospital, on the presence of alcoholism or dependence on psychotropic drugs, prescriptions for the purchase of drugs that affect the psyche);
an expert opinion on a posthumous examination based on medical documents on the state of health during the life of the testator;
confirmation of witnesses of the inadequate state of the testator;
arguments of the handwriting examination about the presence of a fake signature in the will;
confirmation of the illegality of notarial acts by a person who does not have these powers;
confirmation of the falsity of the previously presented testimony.

The statement of claim and documents confirming the correctness of the applicant will be considered in court subject to payment of the state fee. According to article 333.19 of the Tax Code of the Russian Federation, the amount of the state duty is 300 rubles. The receipt of payment of the state duty must be attached to the application and a set of documents sent for consideration in court.

After the annulment of the will in court, the right holders enter into the inheritance according to the law. This procedure begins with the submission of an appropriate application to the notary's office.

In the process of consideration of the inheritance case, the property of the deceased citizen is redistributed among his heirs and the relevant certificates of the right to inherit are issued within the time limits established by law (six months from the date of death of the owner).

Deadlines for contesting an inheritance

The procedure for challenging the inheritance is carried out only after the death of the testator within the time limits specified by law (Article 181 of the Civil Code of the Russian Federation):

3 years from the date of discovery of facts testifying to the invalidity of the will. Drawing up a will in violation of the law (incapacitated person; a citizen who has mental illness; indication of false information, etc.);
1 year from the date of detection of illegal actions in relation to the owner of the property. The testator drew up a will under the influence of threats, physical, psychological violence or as a result of misrepresentation.

In case of violation of their rights during the distribution of inheritance, it is necessary to immediately apply to the judicial authorities. Practice shows that the majority of copyright holders manage to defend their interests in court, the law takes the side of unprotected and undeservedly deprived citizens.

1. Judicial practice answers this question positively on the basis of formal legislative grounds already familiar to us. "In accordance with Article 1112 of the Civil Code, the inheritance includes things that belonged to the testator on the day the inheritance was opened, other property, including property rights and responsibilities. - The rights and obligations that are inextricably linked with the personality of the testator, in particular the right to alimony, the right to compensation for harm caused to the life or health of a citizen, as well as rights and obligations, the transfer of which in the order of inheritance is not allowed by the Code or other laws, are not part of the inheritance . - Personal non-property rights and other intangible benefits are not included in the inheritance. - According to the applicant, the plaintiff's personal rights, which cannot be inherited ... were not the subject of consideration in this dispute. - The conclusion of the court of appeal on the inadmissibility of succession in a disputed legal relationship was made without taking into account the nature of the dispute. The Civil Code of the Russian Federation and other laws do not provide for rules excluding the possibility of the transfer of rights and obligations under a transaction, the legality of which is disputed in this case. - The right to demand the application of the consequences of the invalidity of a void transaction or the recognition of an invalid void transaction does not apply to the rights that are inextricably linked with the personality of the deceased, the transfer of which is not allowed in the order of inheritance "(see the definition of the Supreme Arbitration Court of the Russian Federation dated May 14, 2007 N 1764/07).

2. The fundamental difference between the situation under consideration here and the one that was the subject of the previous question is, of course, that claims for the invalidation of void transactions, as well as claims for the application of the consequences of their invalidity, can be presented by any interested person; moreover, the court has the right to apply the consequences of the invalidity of a void transaction even on its own initiative, i.e. regardless of anyone's requirement to do so (paragraph 2, clause 2, article 166 of the Civil Code). The presence of such - procedural - interest, obviously, will no longer be determined by the moment of making an insignificant transaction, but by the moment of presenting the corresponding demand. When exactly this interest arose and whether it existed at the moment of making an insignificant transaction - for the prospect of satisfying the claims presented, this circumstance will no longer have any meaning; it will only be important that such an interest is present at the time of filing the relevant claim. Thus, the fact that, when a void transaction was made by the future testator, the future heir had no (and could not have) interest in contesting such a transaction or applying the consequences of its invalidity, does not in itself exclude the possibility of such an interest arising later, for example, after opening inheritance. From this point of view, there are no obstacles to recognizing the emergence as part of the legal capacity of the heir, along with such an interest, also the ability ("right") to satisfy such an interest with the help of a legal remedy (claim) - the right to claim for the recognition of the transaction as invalid and (or) about application of consequences of its invalidity * (909).

However, having taken this position, which does not seem to contradict the law, we would involuntarily begin to contradict the principle stated above, according to which the conditions for the validity (and, of course, invalidity) of transactions are determined as of the moment they are made. All those actual circumstances that occur after the transactions are completed cannot affect its validity in any way; the only exception, apparently, is the retroactive law. It would be completely unfounded, frankly, absurd, to demand from the participants in transactions that they foresee the occurrence of any facts in the future and conform with them the validity of their transactions. But if it is impossible to present such a requirement to the participants in civil transactions, then it is clear that there are no and cannot be reasons for re-qualifying their transactions in accordance with suddenly changed circumstances. Allowing the possibility of such a "re-qualification", we would create the basis for a very strange question: if certain circumstances can strike the legal force before a valid transaction and turn it into invalid, then, one asks, why not the participants in invalid transactions raise the question of other circumstances - those that heal an invalid transaction, turning it into a valid one? There is no special need to prove how uncertain the position of the participants in civil circulation would become if the Civil Code allowed at least something like that. With this approach, it is completely impossible to explain how the heir - a person who at the time of the conclusion of a void transaction did not (and could not) have an interest either in challenging it or in applying the consequences of its invalidity - could acquire such an interest after some time after this transaction.

The reasoning shows that the question of the emergence in the legal capacity of the heir of the ability to challenge void transactions and apply the consequences of their invalidity needs a special (deeper) theoretical study.

Does the right of the testator to challenge the decision of the body of the economic company (meeting of shareholders, board of directors) of which the testator was a shareholder (participant) pass to the heir?

We came across two judicial acts interpreting this issue as follows.

1. "According to paragraph 27 of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19, the decision of the board of directors (supervisory board) or the executive body of a joint-stock company (sole or collegiate) may be challenged in court by filing a claim for its invalidation, as in the case when the possibility of contestation is provided for in the Federal Law "On Joint Stock Companies" (Articles 53, 55 of the Law), and in the absence of a corresponding indication, if the decision taken does not meet the requirements of the law and other regulatory legal acts and violates the rights and legally protected interests of the shareholder. in such a case is a joint-stock company ...

In the event of a decision to consolidate its shares, a joint stock company is obliged to provide an equivalent (fair) compensation to shareholders whose shares are converted into fractional shares of a higher nominal value subject to mandatory redemption. This obligation of the joint-stock company by virtue of Art. 408 of the Civil Code is terminated by its proper execution, the right to demand which belongs to the shareholder whose shares are converted into fractional shares of a higher nominal value. -

In full accordance with the materials of the case (including on the basis of data forensic examination) the Court of Appeal established that the value of the share determined by the decision of the Board of Directors of CJSC Polyus dated September 20, 2001 is significantly lower than its market value. - Under such circumstances, the Court of Appeal came to the correct conclusion that the said decision of the Board of Directors of CJSC "Polyus" in the disputed part contradicts the requirements of Art. 74 and 77 of the Federal Law "On Joint Stock Companies" (as amended in force until 01.01.2002). - The claims filed in the present case are essentially aimed at restoring the right to receive equivalent compensation for the fractional shares of the testator redeemed by the joint-stock company, which has passed to the plaintiffs by way of inheritance.

By virtue of the provisions of Art. 1110 of the Civil Code, upon inheritance, the property of the deceased (inheritance, hereditary property) passes to other persons in the order of universal succession, that is, in an unchanged form as a whole. Since, under universal succession, the right of the successor is based on the right of the predecessor, the heir can exercise the right to appeal against the decision of the Board of Directors, taken during the life of the testator, which has passed to him in the order of universal succession. - Under such circumstances, the court of appeal rightfully satisfied the claim "(see the decision of the FAS VSO dated 02.08.2007 N A33-25133 / 04-F02-4771 / 07).

2. "In accordance with paragraph 1 of article 57 of the Civil Code, the reorganization legal entity may be carried out by decision of its founders or a body of a legal entity authorized to do so by legal documents. When a legal entity of one type is transformed into a legal entity of another type, the rights and obligations of the reorganized legal entity are transferred to the newly established legal entity in the order of universal succession (clause 5 of article 58, clause 1 of article 129, clause 1 of article 1110 of the Civil Code) * (910), that is, in an unchanged form as a whole and at the same moment.

In accordance with the provisions of paragraph 2 of Art. 48 of the Civil Code, participants in economic partnerships and companies have rights of obligation in relation to this legal entity. - In case of succession subjective civil rights and the obligations do not cease with the predecessor and do not arise again with the successor. Under such circumstances, in relation to the provisions of Art. 58 of the Civil Code, and also taking into account the fact that the subjective civil rights of the plaintiffs during the reorganization of Orenburg Machine Tool Plant LLP did not stop in the form of transformation, but only changed, the conclusion of the arbitration court that the applicants have no right to appeal the decision general meeting participants of the partnership, the successor of which is OAO "Orenburg Machine Tool Plant", is based on an erroneous interpretation of the norms of substantive law ... "(see resolution of the FAS UO dated 16.06.2003 N F09-1539 / 2003-GK).

3. Of course, the possibility of succession in procedural rights that arose in the course of consideration of the claim of the predecessor in law, aimed at challenging the corporate act (see below, question 757). But the fact of the matter is that we are discussing the question not of the claim that was brought by the testator during his lifetime, and later, as a result of the opening of the inheritance, turned out to be transferred to the heir, but of the claim that the testator himself did not file during his lifetime. In this respect, it is no different from the three previous questions, which deal with the posthumous fate of subjective rights, but elements of the legal capacity of the testator. However, in another respect, this question seems to be completely peculiar, unlike any of the previous ones, because it is not about challenging a transaction, but a corporate act - an act adopted by a third person in relation to the testator. If in previous cases the testator was a direct participant in a controversial action - an agreement planned for termination, a voidable or void transaction - then a corporate act (whether it be a decision of the board of directors or a general meeting of shareholders - it does not matter) is an act of a person other than the testator - a business company, which the testator was a participant, and then the heir became. This circumstance is very important for us, since the disputed corporate act turns out to be beyond any influence of inheritance legal relations. The death of the testator and the acceptance of the inheritance are legal facts that in themselves are not capable of exerting any influence on the fate of a corporate act - an act of a third party who does not take part in inheritance legal relations.

One of necessary conditions successful appeal (challenging) of a corporate act is a violation by this (challenged) act of corporate subjective rights or legitimate interests of the participants in the corporation. And here we suddenly encounter a problem: whose rights are violated by a corporate act? It is possible that at the time of its adoption it violated the corporate rights of the testator. At the same time, he could not violate the rights of the heir, because at the time of the adoption of the corporate act, he was not a member of the economic company and simply did not have any corporate rights in relation to the company. The ability to challenge such an act could arise only from the testator and, being not a subjective right, but an element of legal capacity, it cannot in any way pass to the heir. Can it occur to the heir? Also no, because after the opening of the inheritance (at the time when the heir had already become a member of the company and acquired corporate rights that could be violated by a corporate act), no acts violating these rights were taken on behalf of the corporation. At the time when the act was adopted, he could not violate the rights of the heir (he did not have them, which means that there was nothing to violate); at the same time, when the participation rights of the heir really belonged and, therefore, could be violated, there was no legal fact that could be regarded as a violation of these rights.

It is absolutely unacceptable to "solution" of the problem by "adding" a previously existing legal fact (offense) with the status of a shareholder subsequently acquired by the heir. Civil legal relations arise from legal facts and legal compositions - actual circumstances and their combinations (systems) that took place (occurred) in objective reality. The legal significance of these circumstances is determined on the basis of the conditions in which they actually occurred.

Therefore, the fact of JSC inaction, expressed in the fact that it did not send a notice to convene a general meeting, can be regarded as a violation of the rights of only those persons who were shareholders of this company during the period of the obligation to notify of the upcoming meeting. There is no reason or possibility to reproach JSC for violating future rights - the rights of persons who became shareholders later. "Adding" the fact of violation of the rights of the shareholder-legator with the shareholder status of his heir, we construct something fantastic - something that has never really happened. Legal fantasy, of course, cannot be the basis for the dynamics of civil legal relations.

How to solve the described problem? It seems that for this it is necessary first of all to realize that it arises not only with hereditary (universal) succession. The problem has more general meaning, since it also covers cases of succession of the singular. Here is an example. A certain shareholder suffers a violation of his rights - the company does not notify him of the convening of a general meeting. Some time after such a meeting, the victim sells shares (ceases to be a shareholder); its place is taken by a singular successor - a new shareholder. Who among them has the right to challenge the decision of the general meeting, adopted in violation of the law - the former or the new one? The one whose shareholder rights have been violated is no longer a shareholder at the time of filing a claim - what rights, one wonders, will he defend with the help of the claim given to him? In turn, the person to whom the status of a shareholder now belongs did not have such at the time of the violation - which means, one asks, what rights of his were violated? The solution to the problem must be universal, i.e. cover both described cases - change of shareholder as a result of both universal and singular succession.

At the risk of incurring attacks of various kinds - both practical and scientific - we nevertheless consider it possible to put forward and prove the following thesis: the termination of violated corporate rights deprives their former owner of the ability to protect them, as well as the acquisition of corporate rights from a person who has suffered due to their violation, does not give their new owner the opportunity to protect them. In short, violated corporate rights that have changed their owner cannot be protected by anyone - neither their alienator nor their new owner. In relation to our question, this means that the decision of the general meeting of shareholders, which violated the shareholder rights of the testator, the heir cannot challenge.

The proposed thesis is fully proved, in our opinion, by the correct qualification of the right to appeal (dispute) the decision of the general meeting of shareholders. Like any right to sue, it is an element of civil legal capacity. Universal succession in this kind of opportunities (capacities) according to general rule impossible. With the termination of the violated shareholder rights in the person of the victim - whether it be the testator or another shareholder (singular legal predecessor) - all elements of legal capacity that attached these rights to their carrier and generally “serve” these rights (the ability to perform certain actions with these rights) also cease. ); they are terminated as unnecessary. Can these elements arise as part of the legal capacity of the successor, in particular, the heir? I think not, again because of their uselessness: they will provide the successor with such opportunities that he simply does not need; in particular, he did not suffer in any way from the violation, he did not have and does not have those rights that he could "protect", and those interests that he could "restore".

The foregoing should be the basis for at least a more thorough verification of the correctness of the position taken by arbitration practice on this issue.

Similar information.

In the event that one of the parties to the transaction has died and restitution is impossible, since there is no one to return what was received under the transaction, the courts consider it possible to return the performance due under the invalid transaction to the estate of a citizen. In other words, everything received under an invalid transaction and due to be returned in the form of restitution to a deceased citizen is returned in connection with his death to the composition of the hereditary mass and is inherited by his heirs.

So, applying the consequences of the invalidity of the transaction, the property subject to return in the order of restitution (an apartment transferred at one time to third parties under an invalid donation agreement) was recognized as a hereditary mass in connection with the death of one of the parties to the invalid transaction (Appeal of the Moscow City Court dated September 28, 2012 in the case No. 11-19340).

In another case, recognizing the contract of sale as invalid, he obliged each of the parties to return to the other party everything received under the invalid transaction, and in connection with the death of one of the parties - to its heirs (Appeal of the Voronezh Regional Court dated 05.02.2013 N 33-506).

Similarly, in a case filed by an insurance company against a bank, the insurance contract concluded with the deceased was invalidated. Under this agreement, the bank that issued the loan to the deceased citizen acted as the beneficiary. The citizen, concluding the contract, reported false information about himself about the absence of diseases and health problems, hid the fact of epilepsy and being on a day hospital in a psychiatric hospital, which was essential for determining the likelihood of occurrence insured event and the amount of possible losses from its occurrence. These circumstances served as the basis for challenging the insurance contract as an invalid transaction made under the influence of fraud (clause 1, article 179 of the Civil Code of the Russian Federation).

Recognized by this reason the insurance contract is invalid, at the same time obliged insurance company return to the heir of the insured all insurance premiums paid by the insured in order to return the parties to their original position. In the situation under consideration, it was not possible to oblige the parties to an invalid transaction to return to each other everything received under it in order to bring them to their original position due to the death of the insured. However, the presence of an heir makes it possible to recover insurance payments from the insurance company as received by it under an invalid transaction in favor of the heir (Determination of the Moscow City Court dated 04.10.2011 in case No. 33-31761).

And arbitration there

The position on the right of heirs to challenge transactions made by the testator and not challenged by him during his lifetime, received support in the practice of arbitration courts. Most indicative in this regard is the case that was recently submitted for review to the Presidium of the Supreme Arbitration Court of the Russian Federation regarding the contestation by a citizen of the transactions of her deceased spouse on the disposal of shares in a business entity.

One citizen created a company with an authorized capital of 10 thousand rubles, then he accepted another citizen as a participant, increasing the authorized capital of the company at the expense of the contribution of a new participant by 10 thousand rubles. After that, he left the list of participants, received the actual value of his share, which, by decision of the participant remaining in the company, was redistributed to him.

The participant who left the company was married at the time of the said transactions, later his spouse died. Subsequently, the heirs of the deceased spouse filed a lawsuit with the Court to recognize the transaction for the withdrawal from the membership of the citizen who was the spouse of their testator as invalid, indicating in support of their claims that the consent of the deceased spouse was not obtained.

The board of judges of the Supreme Arbitration Court of the Russian Federation, transferring the case to the Presidium of the Supreme Arbitration Court of the Russian Federation at the request of the heiress, noted the following. By virtue of paragraph 1 of Art. 1176 of the Civil Code of the Russian Federation, Art. 34 of the Family Code of the Russian Federation, paragraph 8 of Art. 21 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies", the estate of the deceased spouse includes the corresponding part of the share in the limited liability company belonging to the other spouse.

It follows from the rule on universal succession during inheritance that the heir has the same rights as the testator had, with the exception of rights that are inextricably linked with the personality of the testator (part 2 of article 1112 of the Civil Code of the Russian Federation), and can protect violated rights. Therefore, the heir of the deceased spouse has the right to challenge transactions that the testator could challenge, including on the grounds provided for in paragraph 2 of Art. 35 RF IC.

According to the said rule of law, a transaction made by one of the spouses on the disposal of the common property of the spouses may be declared invalid by the court due to the lack of consent of the other spouse only at his request and only in cases where it is proved that the other party to the transaction knew or obviously should have known about disagreement of the other spouse to the transaction.

The adoption by the spouse of a decision to introduce a new participant into the company's participants with an additional contribution to the company's authorized capital may be considered as a transaction contrary to paragraph 2 of Art. 35 of the Family Code of the Russian Federation, since such an action is essentially a disposition of the common property of the spouses, entailing a decrease in the size of the spouse's share in the company.

The withdrawal of a spouse from the company with the subsequent distribution of the share transferred to the company to another participant (or a third party) is also a disposition of the common property of the spouses and can be considered as a transaction contrary to paragraph 2 of Art. 35 RF IC. Such transactions may be invalidated at the suit of the other spouse or his heir, if there is evidence that the participant acquiring the share knew or obviously should have known about the other spouse's disagreement with the transaction.

The heir of the spouse in such cases on the basis of paragraph 2 of Art. 167 of the Civil Code of the Russian Federation has the right to demand that a part of the share in the company or the actual value of this part be awarded to him from the participant who acquired the share, in the amount that the deceased spouse could demand when dividing the common property of the spouses (Article 39 of the RF IC).

If the participant does not have a share that has passed to him due to its further alienation (or redistribution of shares in another way), the spouse’s heir has the right to demand the restoration of corporate control from the subsequent acquirer of such a share in the corresponding part due to him, if he proves his bad faith, or the recovery of the cost of a part of the share from the participant , which made the subsequent alienation of the share.

In addition, as the panel of judges of the Supreme Arbitration Court of the Russian Federation explained, such a transaction can be challenged on the grounds of its pretense (clause 2, article 170 of the Civil Code of the Russian Federation). A transaction to introduce a citizen into the company’s participants and a transaction to withdraw another participant who was the only participant before accepting a new one can cover up a transaction for the alienation of a share in the amount of 100% of the company’s authorized capital to a new participant, that is, they are feigned.

Property acquired during marriage is the joint property of the husband and wife. However, after the death of one of them, disputes often arise. We will understand in the article how the marital share in the inheritance is determined and formalized according to the law after the death of a spouse.

All property acquired by the spouses during the marriage is recognized as their joint property. An exception is the presence of a marriage contract, which states otherwise, or an agreement that includes an indication of the division of property.

In general, joint property is considered to be:

income of husband and wife received from any type of activity;
non-targeted social benefits and pensions;
movable and real estate, securities, deposits, shares in the capital of commercial organizations, if these things were acquired from the general income;
other property acquired during a legal marriage.

It does not matter in whose name the items were purchased, who specifically contributed the money and to whom they are issued. The main thing is that at the time of purchase, the marriage was officially registered by the registry office.

All of the above applies to property acquired for compensation by the spouses. If something was received by inheritance or donation, then it will not be joint property. The same applies to things intended for individual use, except for jewelry and luxury goods. This is regulated by Art. 36 RF IC.

After the death of a husband or wife, the second spouse has the right to part of the joint property acquired during marriage. The shares of the spouses are equal and amount to 50% for each. The inheritance mass will include only the part of the property belonging to the deceased spouse.

For example, a husband and wife have a house purchased under a contract of sale during the marriage. After the death of one of the spouses, only the part of the house that belonged to him, that is, half, will enter the estate. The second half remains with the surviving spouse and will not be included in the inheritance.

This spouse also participates in the division of the estate. Suppose the testator has a son and a wife. They both show up and share half of the house equally. As a result, the wife will own her legal half and ½ of the part of the house that belonged to her husband. The son will receive ¼ of the entire house.

Mandatory share of a spouse by law

Inheritance may be by law or will. If the last will of the deceased deprived the husband / wife of the inheritance, the allocation of the mandatory marital share will still occur. It is impossible to deprive this legal part of the common property.

It is also possible that the spouse does not take into account that part of the property belongs to the husband / wife when drawing up the will. For example, he bequeaths the entire apartment to the children, not taking into account that half of the living space belongs to the spouse. In this case, the will is contested in court or the issue is regulated by an amicable agreement with the heirs.

Do not confuse the right to a mandatory share in the inheritance under Art. 1149 of the Civil Code of the Russian Federation and the mandatory marital share are legally different concepts. According to this normative act, a disabled spouse has the right to receive a share in the estate equal to at least half of the part of the inheritance that would be due to him as the heir of the first stage.

For example, a woman has an apartment acquired before marriage. Her husband and daughter are legal heirs. The woman made a will, according to which the apartment becomes the property of her daughter, and her husband does not get anything. However, the husband had previously lost his ability to work. For this reason, he has the right to count on a mandatory share in the inheritance, namely ¼ of the apartment - half of the part of the inheritance that he would have received if his wife had not deprived him of this right by will.

The husband / wife may be deprived of the mandatory share if, by a court decision, they are recognized. But even in this situation they cannot be deprived of their marital share.

How to get a marital share?

To accept an inheritance after the death of a husband/wife, use step by step instructions below.

Stage 1. Finding out the order of inheritance

Property may be distributed by law or will. If there is a will, the division of the estate will take place in accordance with its content. The only exception will be the situation when the right to a mandatory share is exercised. According to Art. 1149 of the Civil Code of the Russian Federation, the testator cannot deprive the following persons of the right to receive an inheritance:

minor or disabled children;
disabled parents;
disabled spouse;
dependents who were supported by the testator.

If there is no will, inheritance will occur in the manner prescribed by law. The sequence established by civil law will apply here (Articles 1142-1145).

Relatives belonging to the same order inherit the property in equal shares. If there are no heirs of one line, the right passes to persons from subsequent lines. The primary heirs are children, parents and spouse.

If the heirs do not plan to dispute the shares, there is no corresponding court decision or a marriage contract, then half of the jointly acquired property of the spouses will be included in the inheritance mass. This part will be inherited by the husband/wife alone or distributed among all heirs of the first stage in equal shares.

Stage 2. Acceptance of the inheritance

In order to accept an inheritance, you must contact a notary dealing with inheritance matters and write an appropriate application - on the acceptance of the inheritance or the issuance of a certificate of the right to inheritance. As a rule, you should contact the notary office at the last place of residence of the testator.

The type of application submitted by the citizen has the right to choose independently. However, it is recommended to make a request for a certificate, since it automatically assumes that the heir has accepted his part of the property, even if there is no separate document about this.

You can accept the inheritance within six months from the date of opening the inheritance case. It coincides with the date indicated in the medical certificate of death or court decision.

If the six-month period has been missed, it can be restored only in court. To satisfy the claim, it will be necessary to prove in court that the deadline was missed for a good reason. For example, due to a serious illness or a long stay abroad without the possibility of leaving.

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Stage 3. Preparation of documents for registration

The notary issues a certificate of inheritance on the basis of certain documents. The required papers include:

documents confirming the fact of death - death certificate, court decision;
papers that serve as the basis for calling to inherit - a will, a marriage certificate;
documents confirming the existence of the testator's ownership of the property - a certificate, an extract from the USRN, etc.;
the conclusion of an independent appraiser on the value of the property or confirmation of the value received from authorized organizations (for example, BTI).

The issuance of a certificate of inheritance is subject to state duty. Its size for the immediate family members, to which the spouse belongs, is 0.3% of the value of the inheritance, but not more than 100 thousand rubles.

This is not an exhaustive list of documents. The notary has the right to demand, as necessary, other papers.

Stage 4. Obtaining a certificate of inheritance

The certificate is issued after six months from the date of death of the testator. You need to get it from a notary after providing the required documents.

The certificate of inheritance may be issued before the expiration of six months. To do this, the notary should have no doubts that there are no other heirs who can apply for registration of a share.

Allocation of the marital share - agreement or claim

Disputes often arise in inheritance cases. Sometimes it is difficult to determine the belonging of property to the number of jointly acquired. For example, if a car was donated by a husband to his wife, of course, without drawing up a donation, then by law it is the joint property of the spouses, since it was acquired during marriage. However, the wife considers it her property, which is quite justified.

In the event of a dispute, there are two options:

Conclusion of an agreement in writing on the division of the estate.
Appeal to the judicial authorities with a claim to challenge the procedure for dividing the inheritance.

Let's consider each option in more detail.

Conclusion of an agreement

Civil legislation provides for the possibility of free conclusion of contracts between citizens (Article 421 of the Civil Code of the Russian Federation). If this does not contradict the current legislative norms, the heirs have the right to conclude any agreement on the division of the estate.

The agreement is made in writing. It is necessary to bring it to the attention of the notary, about which the specialist will put an appropriate mark on the document. Without notarization, the agreement will not have legal force.

An obligatory marital share may be allocated through an agreement. The text and form has no indications in the legislation. In fact, these are agreements written on paper by family members on the distribution of property of the testator.

However, relatives do not always manage to agree peacefully. Most of the time you have to go to court.

Filing a claim

The claim for the allocation of a mandatory marital share has a strictly established form. Otherwise, it is not accepted by the judicial authorities for consideration.

The claim will be the protection of property rights in relation to jointly acquired property in marriage with the deceased spouse. The plaintiff is the husband / wife of the testator, the defendants are the other heirs.

The claim must contain the following information:

the name of the judicial institution;
data of the plaintiff and defendants - full name, contact information, address of registration and actual place of residence;
claim value - the estimated value of a share of jointly acquired property;
statement of circumstances - the date of death of the spouse, a list of property, the essence of the dispute;
a requirement to the court - to allocate the husband / wife's share in joint ownership and recognize the property rights of the plaintiff to this property;
list of attached documents;
date of filing the claim.

The statement of claim is accompanied by a certificate of marriage and death of the spouse, a marriage contract (if any), a will (if it was drawn up), title documents for the disputed property. Other papers relevant to the case may also be attached.

Renunciation of the marital share in the inheritance

The share of the surviving husband/wife can be included in the estate only if he/she writes a statement refusing to allocate property from the jointly acquired property.

The possibility of refusing to be allocated is provided for in Art. 9 and Art. 236 of the Civil Code of the Russian Federation. The writing of such a statement implies, among other things, the waiver of ownership of this property.

The notary has no right to interfere with the writing of the refusal. His duties include only an explanation of the legislative framework and the legal consequences of such a statement. Based on this paper, the notary will include the share of the surviving spouse in the total estate and divide it among all heirs in the standard manner.

If there is no such statement, the notary has no authority to include the marital share in the composition of the estate. However, sometimes the wife / husband writes a statement stating that there is no joint property of the spouses in the inheritance. Arbitrage practice has many examples where such a statement was disputed.

Adjustment of the surviving spouse's share of the estate

As a general rule, the joint property of the spouses is divided equally. However, the legislation provides for situations in which the share can be adjusted up or down.

In accordance with Art. 39 of the RF IC, the grounds for adjustment may be:

the presence of spouses of children who have not reached the age of majority;
disability of the husband/wife;
causing damage to the family by the husband/wife.

The last point can be attributed to the abuse of alcohol or drugs gambling, income avoidance, indifference to family life, etc.

If you have any questions or disputes, please contact legal advice. You can get free legal assistance on our website.

Now you know how the allocation of the marital share in the inheritance takes place according to the law after the death of the spouse. It is not always possible to resolve the issue peacefully. If you need to go to court, you can not do without the help of a competent lawyer.

Even after the death of a husband or wife, a well-drafted prenuptial agreement can keep acting thus protecting the property rights of the surviving spouse. Its presence greatly facilitates and speeds up the process of distributing the inheritance between the relatives of the deceased and his other half.

When drawing up an agreement, it is important to observe the absence of grounds on which it can be declared invalid in court. Only in view of the foregoing, a marriage contract can become guarantor of your property rights.

Is a marriage contract valid after the death of one of the spouses?

In order to understand this difficult issue, one should refer to Art. 16 RF IC, which defines grounds for termination of marriage, which include:

death of one of the couple or recognition of his death by a court decision;
divorce at the request of the spouses or one of them.

Thus, the death of a husband or wife practically serves grounds for terminating a marriage contract(Article 43 of the RF IC), with the exception of cases where the text of the contract contains provisions extending its effect to the property rights and obligations of the spouses after a divorce or the death of one of them.

So, if the agreement establishes the regime separate property, then even after the death of one of the married couple, the property belonging in marriage to the surviving husband or wife will belong only to him and will not be included in its composition when determining the inheritance.

Considering the foregoing, it can be concluded that the prenuptial agreement or its individual positions may be valid after the death of the spouse, but the following should be taken into account:

It should not define rights arising from the death of a husband or wife. Since in this case the rules of inheritance law come into effect, and the contract may be declared invalid.
When drawing up a document, special attention should be paid to the period of its validity and the consequences that occur in the event of termination of the marriage, including due to the death of one of the spouses.

Division of property in the event of the death of a spouse in the presence of a marriage contract

The division of property rights in the event of the death of one of the spouses in the presence of a marriage contract implies definition of estate, relying on close relatives of the deceased by law and part of the property, which under the contract remains in the ownership of the surviving spouse and not eligible for inheritance.

If a separate property regime is established for certain property by a marriage contract, then the spouse acquires the right of ownership to this property from the time when the contract is concluded or when the property specified in the agreement is acquired.

The right of ownership remains unchanged in the event of termination of the marriage, including due to the death of the other spouse.

Zakharova A.P. applied to the court. With statement of claim, in which she stated the following: her father Zakharov N.P. was married to Zakharova K.I. As spouses, they entered into a marriage contract, according to which the apartment they bought jointly in the name of their wife was only her property, the contract did not apply to the rest of the property. The plaintiff filed a demand for the recognition of the marriage contract as invalid, due to the fact that the marriage relationship was terminated by the death of her father and asked the court to include the apartment in the estate along with other property.

The court, having studied the case file, rejected the plaintiff's claims, citing the fact that the ownership of the apartment from Zakharova K.AND. arose from the date of the conclusion of the marriage contract. Termination marital relations due to the death of her husband is not a basis for contesting this fact. By a court decision, the plaintiff is entitled to ½ of the property of the deceased, without including in this property an apartment owned by Zakharova K.AND. under contract.

It is a gross mistake to attempt to include elements of a will in the contract. In this case, it will be declared null and void, and the distribution of property rights between the spouse of the deceased and his close relatives will be carried out according to the law in accordance with Ch. 63 of the Civil Code of the Russian Federation.

Recognition of the marriage contract as invalid in the event of the death of the spouse

After the death of a husband or wife, the marriage contract concluded between them may be challenged by the heirs of the deceased. The purpose of relatives who decide to go to court with a claim for the recognition of the contract as invalid, there will be a desire to increase their share in the inheritance.
If the spouses succeeded in drawing up the document:

circumvent the conditions for the recognition of the transaction as invalid, as established family code(Article 44 of the IC of the Russian Federation), and common to all transactions (Chapter 9, paragraph 2 of the Civil Code of the Russian Federation);
the contract is drawn up in compliance with all the rules of legality;
It has written form and certified by a notary.

In the above cases, they can be calm that their will will not be challenged by close relatives, in the event of the death of any of them.

We also emphasize once again that the reason for the invalidity or nullity of the marriage contract may be the provisions included in it regarding child support, the division of hereditary property, and an attempt to resolve personal relationships.

An agreement concluded under pressure, threats, if one party deliberately misled the other, will be recognized as invalid. The only point is that these facts will have to be proved in court by the relatives of the deceased, and this will be quite difficult to do due to the absence of the deceived person. And the evidence must be reliable and irrefutable.

An agreement entered into will be null and void. in civil marriage . Since, in accordance with Art. 40 of the Family Code of the Russian Federation, a marriage contract can regulate the property rights of persons wishing to enter into a marriage union or who are already legal husband and wife.

Judicial practice of challenging the marriage contract after the death of one of the spouses

If a married couple turned out to be prudent and, in addition to settling their property relations by a marriage contract, provided for the interests of heirs Having made a will, then the questions about challenging the contract will disappear by themselves.

Often, the issue of heirs remains unresolved. As a result, the relatives of the deceased and the surviving spouse are faced with the need to determine their rights to property in court. Of course, if it is not possible, we will agree peacefully within the framework of the law.

In practice, successors quite often they try to challenge the marriage contract. Since its invalidation leads to an increase in the share in the inheritance. As mentioned earlier, there are many reasons for this, both general and arising from the norms of family law. Therefore, to compile this document you need to take it seriously, resorting to the help of lawyers.

Davydkin T.S. applied to the court with a claim in which he asked to recognize the marriage contract concluded between his father and stepmother as invalid. Under the agreement, the stepmother became the owner of the apartment, car and land acquired during marriage in the event of termination of the marriage. Davydkin motivated by the fact that the contract did not contain an indication of the acquisition of ownership of the above property in the event of death. In this connection, in his opinion, his father's property should be inherited by law without taking into account the marriage contract.

The court denied the claim. In his decision, the judge explained the following: considering Art. 16 of the RF IC, one of the grounds for the termination of marital relations is the death of a husband or wife. Based on this, the condition of the agreement on the acquisition of ownership of the said property in connection with the termination of the marriage was observed. The plaintiff was assigned ½ of the property, which is not covered by the marriage contract.

In this case, the document was drawn up correctly, but there are many examples when a court decision invalidates the contract in whole or in part.

Kudryashova L.P. applied to the court. with a statement on the recognition of the marriage contract concluded between her mother and stepfather as invalid. In the application, she explained that, according to the agreement reached by them, the stepfather became the owner of the residential building acquired in marriage, after the termination of marital relations. With this in mind, he evades the division of the house under the law of succession. The plaintiff explained that, in her opinion, the contract should be challenged, since during the life of the mother, the spouses did not have time to certify it with a notary.

The court upheld the claim in full. Since the marriage contract is subject to mandatory notarization (Article 41 of the RF IC). Otherwise, it is declared invalid. Disputed property completely included in the hereditary mass, and was divided in accordance with Ch. 63 of the Civil Code of the Russian Federation.

Thus, a marriage contract, like any transaction, cannot be attributed to indisputable documents. Both during the life of the spouses, and after the death of one of them, it can be declared invalid at the request of one of the parties to the contract or the heirs of the deceased.

Questions from our readers and answers from a consultant

My husband and I entered into a marriage contract on a separate property regime. He is currently terminally ill. The husband has two children from his first marriage. I am interested in the question, how will the inheritance property be distributed between me and my husband's children in the event that he does not draw up a will?

Since you have entered into an agreement on a separate property regime, all property acquired by you in marriage and registered in your name will remain your property and will not be included in the estate. The inheritance will consist only of the property of the spouse, which will be divided equally between you and his children (Article 1142 of the Civil Code of the Russian Federation).

My husband died a month ago. In marriage, we bought a country house, registered it in my name and entered into an agreement under which the rights to the house belong only to me. After the death of her husband, his children from his first wife said that they were going to go to court to declare the contract invalid, since, in their opinion, it had significantly violated their rights, moreover, it had ceased to be valid due to the death of their father. Can they challenge my rights to the house in court?

Under the agreement, you acquired the right of ownership from the moment of signing and notarization of the document. This is a fait accompli that has no retroactive effect. Children can count on a share in the rest of the property, which is not covered by the marriage contract.