Inheritance of a share in joint property and more: advocates have made comments

In the event of the death of one of the subjects of joint shared ownership, the shares of each of the co-owners in the joint shared ownership shall be deemed equal, unless otherwise agreed between them, by law, or by a court decision.

This provision is proposed to supplement the article of the Civil Code on inheritance of a share in joint ownership in accordance with the draft law «On amendments to the Civil Code of Ukraine in connection with the update (recodification) of the provisions of Book Six».

The Committee of the Ukrainian National Bar Association on civil law and procedure supported this addition, while noting that the proposed wording of the provision does not describe cases where the property is jointly owned, but one of the co-owners (for example, one of the spouses) is the «title holder».

«There are frequent cases of abuse by such a «title holder» - the unilateral alienation of property contrary to the interests of the heirs of the deceased «invisible» participant in joint shared ownership, - the advocates warned. - And it is precisely these cases that such an addition does not eliminate».

Therefore, it is proposed to supplement Article 1226 of the Civil Code with a provision stating that in the event of the death of one of the subjects of joint ownership who is not listed in the relevant state register as the owner of the property, upon the request of the heirs, the notary public who is registering the inheritance shall make an entry regarding the size of his share.

In this case, a mechanism will be created whereby, in the absence of a dispute between the heirs, the notary will be able to register the inheritance rights out of court, advocates believe. And if there is a dispute between the heirs, then the court will decide. The creation of an out-of-court mechanism for resolving this issue is critical, the UNBA believes.

The Committee also commented on other provisions of Book Six, in particular regarding the inheritance of alimony obligations, testamentary dispositions (including the appointment of a guardian/caregiver and the obligation to care for an animal), provisions on the use of reproductive biological material, and the inheritance of persons conceived using assisted reproductive technologies, the terminology «will/disposition» and the place of the relevant provisions in the structure of the Civil Code, the division of inheritance (agreement on division/allocation), adjustment of the order of inheritance by law, as well as the management of inheritance until the certificate is obtained, in particular when it includes corporate rights.

The full text of the UNBA's comments and proposals can be viewed at this link.