Provisions of Ukrainian legislation are not applicable for determining the incapacity of a foreigner as a subject of the right to a compulsory share in inheritance - SC CivCC

A foreigner as a subject of the right to a compulsory share in the inheritance must be incapacitated in the sense of the law of the state of which he is a citizen.

This conclusion was reached by the Supreme Court in its entirety of the Second Judicial Chamber of the Civil Cassation Court, ensuring the unity of case law.

In the case under review, the plaintiff, who is a US citizen, filed a lawsuit claiming that she was entitled to a compulsory share in the testator's estate under Part 1 of Article 1241 of the Civil Code of Ukraine.

The court of first instance, dismissing the claim, considered that the plaintiff had not acquired the status of a disabled person in the United States. At the same time, the plaintiff did not provide the court with documents or facts that would confirm that she had acquired the status of a disabled person in Ukraine, and the Law of Ukraine ‘On Compulsory State Pension Insurance’ cannot be applied to her, as she is not a citizen of Ukraine, and, as a result, the plaintiff is not entitled to a compulsory share in the inheritance.

In partially upholding the claim, the court of appeal noted that the plaintiff was entitled to a compulsory share in the inheritance that opened after her mother's death pursuant to Part 1 of Article 1241 of the Civil Code of Ukraine.

The Second Judicial Chamber of the CivCC came to the following conclusions. Foreigners and stateless persons have civil legal capacity in Ukraine on an equal footing with Ukrainian citizens, except as provided by law or international treaties of Ukraine (Part 2 of Article 17 of the Law of Ukraine ‘On Private International Law’).

Inheritance in Ukraine is regulated by the main regulator of private relations, which is the Civil Code of Ukraine. However, if there is a foreign element in such relations, the provisions of the Law of Ukraine ‘On Private International Law’ apply.

The Second Judicial Chamber also emphasised that the Civil Code of Ukraine, as the main ‘regulator’ of inheritance relations, does not contain any restrictions or prohibitions on a foreigner being the subject of the right to a compulsory share. However, a foreigner as a subject of the right to a compulsory share must be incapacitated within the meaning of the law of the state of which he or she is a citizen. As a result, the rules of public laws of Ukraine cannot be applied to determine whether a foreigner is incapacitated.

The court of first instance found that the plaintiff, a US citizen, was not disabled under US law, but mistakenly believed that Ukrainian public law could be applied to determine whether a foreigner was disabled. The court of first instance reasonably noted that there were no grounds to satisfy the claim, but erred in its reasons for dismissing the claim. Instead, the court of appeal overturned the court's decision, which was substantially in line with the law.

In view of the foregoing, the Second Judicial Chamber of the CivCC of the Supreme Court cancelled the decision of the court of appeal and changed the decision of the court of first instance by setting out its reasoning in the wording of this resolution.

Resolution of the Civil Cassation Court of the Supreme Court of 30 January 2025 in case No. 638/7132/15 (proceedings No. 61-18013свп23) - https://reyestr.court.gov.ua/Review/125326107.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.