The phenomenon of dormant inheritance in inheritance law
Abstract
The article is devoted to clarifying the essence of the phenomenon of dormant inheritance in inheritance law. It has been concluded that the right of ownership of the inherited property is acquired by the heir retrospectively from the time the inheritance was opened, regardless of the legal regime of the inherited property. However, until the moment of state registration of the right of ownership, the heir is limited in his/her ability to dispose of the inherited real estate, in particular by alienating it. However, this limitation does not at all indicate that the heir has not acquired the right of ownership of the inherited property. The heir can transfer the inherited property to management, enter into an agreement on changing the size of shares in the inheritance.
It is emphasized that a necessary condition for the emergence of the right of ownership of the inheritance is its acceptance by the heir in the manner and terms determined by civil legislation.
The theory of splitting the ownership of inherited property is analyzed, according to which the emergence of the right of ownership of hereditary movable property is associated with the time of the opening of the inheritance, and for immovable property – with the date of state registration of rights to it. The contentiousness of the theory of splitting the ownership of inherited property is substantiated due to its inconsistency with the construction of universal legal succession.
The phenomenon of dormant inheritance characterizes the actual state of the objects of inheritance from the time of the opening of the inheritance to the moment of its acceptance by the heir. Legally, such an interval of the state of statelessness of property does not exist, taking into account the rule of retroactive acceptance of inheritance established in the law. Thus, according to part 5 of article 1268 of the Civil Code of Ukraine, regardless of the time of acceptance of the inheritance, it belongs to the heir from the time of opening the inheritance, that is, from the moment of the death of the testator or his/her declaration as deceased. It is emphasized that the provision on retroactive acceptance of inheritance is a legal fiction.
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