Cash assistance for children after the death of a serviceman: is the child of the deceased, born after his death, entitled to receive it

Every human life is priceless, but military personnel in the war zone face mortal danger and risk to life every minute. No payments and compensation will ever replace a loved one who has left this world. However, there is a war in the country, so, unfortunately, Ukrainians are faced with questions about receiving benefits for children after the death of a serviceman, because life goes on and they need help.

How to legally competently get it? Which children are generally entitled to receive it? Does a child of a fallen serviceman, conceived during his lifetime but born after his death, have the right to receive benefits? IA “FAKT” turned to the “Repeshko and Partners” bar association for comments.

According to the resolution of the Cabinet of Ministers of Ukraine No. 168 of February 28, 2022, a one-time financial aid in the amount of 15,000,000 hryvnias is paid to the families of fallen servicemen, which is distributed in equal shares to all recipients provided for in Article 16-1 of the Law of Ukraine “On Social and Legal protection of servicemen and members of their families”. This applies to everyone, except for citizens of the Russian Federation or the Republic of Belarus and persons permanently residing in the territories of these countries, persons convicted of treason, collaboration, or aiding and abetting the Russian Federation. Payment of one-time cash benefits is also made to the families of servicemen who died as a result of injuries (contusions, injuries, mutilations) received during the period of martial law, participation in hostilities, being directly in the areas of their conduct (implementation), during the period of implementation of the specified measures, no later than one year after the injury (contusions, injuries, mutilations).

According to Article 16-1 of the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families”, family members of deceased (deceased) persons include:

• children, including adopted children, conceived during the life of the deceased (deceased) person and born after his death, as well as children in respect of whom the deceased (deceased) person was deprived of parental rights during his lifetime;
• widow (widower);
• parents (adoptive parents) of the deceased (deceased) person, if they were not deprived of parental rights in relation to him or their parental rights were renewed at the time of his death (death);
• grandchildren of the dead (deceased) person, if at the time of his death (death) their parents died (deceased);
• a woman (man) with whom (with whom) the deceased (deceased) person lived in the same family, but were not married to each other or in any other marriage, provided that this fact was established by a court decision that entered into force ;
• Dependents of a deceased (deceased) person, defined in accordance with the Law of Ukraine “On pension provision of persons released from military service and certain other persons”.

Who are considered dependents of a deceased person?

Dependents of the deceased person are those family members who were fully dependent on him or received help from him, which was a constant and main source of livelihood for them. These include:

• disabled adult children;
• adult children under the age of 23 who received alimony in connection with education;
• brothers, sisters and grandchildren who have not reached the age of 18 or are older than this age, if they became disabled before reaching the age of 18 and were fully dependent on the deceased.

I would like to know in more detail which categories of children have the right to receive assistance.

If we consider this issue in more detail, the following categories of children are entitled to receive assistance:

– children up to 18 years of age and over 18 years of age, if they were either disabled in childhood or acquired a disability before reaching adulthood;

– native children, born in marriage, in respect of which a military serviceman at one time submitted an application to the authorities of the Russian Civil Service Agency for entry in the official record of birth as the father;

– children whose father is recognized by a court decision;

– children born before the expiration of ten months after the termination of the marriage or its recognition as invalid;

– children conceived by the wife as a result of the use of assisted reproductive technologies carried out with the written consent of her husband, therefore he is considered the father;

– adopted children – children in respect of whom there is a court decision on adoption on the basis of which information about the adopter was entered into the act record of the child’s birth and, accordingly, the record of paternity was also changed in the birth certificate;

– children in respect of whom the deceased (deceased) person was deprived of parental rights during his lifetime – this procedure is carried out on the basis of a court decision, and after that, the RAC authorities make changes to the birth certificate of the child.

A very difficult question regarding children conceived during the life of a fallen serviceman, but born after his death. How can they get help?

From our point of view, this category of children is the most vulnerable. If the child was conceived in marriage and was born before the expiration of ten months, there are no questions here – the child will automatically be registered as a husband.

If a child was born before the expiration of ten months from the date of the termination of the marriage (by this the legislator understands the dissolution of the marriage, the death of the husband or the declaration of the husband as deceased), but after the registration of the remarriage of the mother with another person, it is considered that the father of the child is the husband of the remarried mother . That is, if a woman divorced a serviceman when she was five months pregnant, but married another man in the sixth month of pregnancy, then the woman’s new husband will be considered the father of the child. In the event of the death of a serviceman, the only way to prove the fact of the relationship of a born child with a military serviceman father is to obtain an appropriate court decision establishing the fact of paternity.

If a child was born to a military serviceman father to a woman who was never officially married to him, but was in a “civil marriage” or did not live together at all, but simply met, then in this case also the only way to prove the fact of the birth child’s relationship with a military serviceman father is the receipt of an appropriate court decision establishing the fact of paternity.

It should be noted that the cases of establishing the fact of paternity are quite complicated in their essence precisely in connection with the need to provide evidence that would reasonably and unambiguously confirm the paternity of the deceased serviceman with respect to the born child, and love correspondence in Viber is not enough here. The most ideal evidence is a DNA examination, but the samples for its conduct must be selected correctly, which, unfortunately, is not always possible. And if this category of cases requires a separate topic, then the following real life situation reflects the bureaucratic approach of the authorities even in quite painful issues.

We would like to cite as an example a very interesting decision adopted by the Resolution of the Supreme Court as part of the panel of judges of the Cassation Administrative Court dated May 10, 2024, case No. 440/6725/23. The essence of the situation is that the problem arose where no one expected it. The plaintiff, a mother in the interests of her minor son, applied to the regional territorial center for staffing and social support with a statement regarding the payment of a one-time cash benefit, provided for in paragraph 2 of Resolution No. 168, to the son of a deceased serviceman. The defendant (TCC and SP) refused to grant a one-time cash benefit because the son of a serviceman was born after his death. Disagreeing with the defendant’s decision, the plaintiff appealed to the court with a lawsuit. Courts of previous instances established that according to the marriage certificate, the child of the serviceman was born in a registered marriage, but already after the death of the serviceman.

According to the excerpt from the minutes of the meeting of the commission of the Ministry of Defense of Ukraine, based on the results of the review of the submitted documents, the commission came to the conclusion of refusing to award a one-time monetary aid in accordance with paragraph 2 of the Resolution of the Cabinet of Ministers of Ukraine dated February 28, 2022 No. 168 to the wife of a sergeant who died during martial law, which is in effect in the interests of a minor son. This decision is based on the fact that the serviceman died and on the date of his death the right of persons to receive one-time cash benefits is determined, the son was born after the death of the serviceman, therefore, taking into account the provisions of Article 25 of the Civil Code of Ukraine, the wife was denied a share of the one-time cash benefits for her son.

The panel of judges established that the child was born in wedlock, as this is confirmed by the marriage certificate, which is in the case file. The court ruling states:

By its nature, one-time cash assistance in case of death (death) of a serviceman is compensatory in nature, which is aimed at materially supporting, as far as possible, family members (parents, children, spouse) and dependents of a deceased serviceman after the loss of a loved one (breadwinner), and therefore, the exclusion of the child of a military serviceman from the circle of persons who have the right to receive assistance based on the date of his birth does not correspond to the content and purpose of the law.

The approach of the Ministry of Defense of Ukraine regarding the refusal to award a one-time cash benefit in accordance with paragraph 2 of Resolution No. 168 to a child conceived during the life of a deceased (deceased) person and born after his death is discriminatory. The conclusion of the Ministry of Defense of Ukraine that the child of the fallen serviceman was born after his death, and therefore did not acquire the right to receive a share of the one-time cash benefit in the event of the death of a serviceman, is erroneous, since such an approach to the interpretation of legislation does not comply with the provisions of the Law of Ukraine “On Social and legal protection of servicemen and members of their families”. It also contradicts the main principles of childhood protection, namely, the equality of rights and freedoms of children, which are defined by normative legal acts, regardless of birth or any other circumstances, as well as the international obligations of the state in accordance with Article 2 of the Convention on the Rights of the Child respect and ensure all the rights provided for in this Convention for every child, without any discrimination.”

The paragraph of the decision of the commission of the Ministry of Defense of Ukraine, which refused to award a one-time monetary aid to the wife of the deceased, who acts in the interests of the minor son, was recognized by the court as unfounded, adopted without taking into account all the circumstances that had a place and significance for its adoption, as well as the requirements of the law, and therefore it was declared illegal and canceled.

This court decision once again confirms the necessity and importance of legal protection and persistence in defending one’s interests.

It should be noted that the date of the right to receive a one-time cash benefit in the event of the death (death) of a serviceman, conscript and reservist is the date of death indicated in the death certificate. However, one more nuance should be taken into account here. The family of a deceased person – a military serviceman has the right to receive a one-time monetary benefit provided for by Resolution of the Cabinet of Ministers No. 168 of February 28, 2022, and a one-time monetary benefit or compensatory payment established by other legislative acts. It is carried out by choice. In addition, if we are talking about a child as a recipient of compensation payments, then in this case the choice of which financial aid to receive is made by the child’s mother as her legal representative. That is why the child’s mother needs to be very careful when she is offered to sign any document, because in this situation she acts not only for herself and in her own interests, but primarily protects the interests of the child or children.

There is also another important point. If, after the appointment and payment of one-time cash assistance in full amount (15,000,000 hryvnias), other persons who are entitled to it apply for it, the issue of redistribution of the amount of such assistance shall be resolved by mutual consent of the persons or in court. Therefore, the speed of protection of the child’s interests in such a case should be maximal, as they say, “on hot pursuit.” It should be remembered that although the general statute of limitations is set at three years, the faster the necessary documents are collected and the child’s interests are protected, the more likely the case will be successful.

What documents must be collected to receive assistance?

After notification of a death, the TCC and SP or a military unit must issue a death certificate to the relatives. After the family has received it, you can start collecting other necessary documents. For this, the family must contact the military leadership of the deceased, and within 10 days it must provide:

1. Extract from the order to exclude the deceased from the personnel list of the military unit.
2. A document testifying to the reasons and circumstances of the death of a soldier.
3. Extract from the personal file about the composition of the military serviceman’s family.

After receiving these documents, family members should apply to the regional TCC and SP, regardless of the place of registration, and submit an application for payment appointment and the following documents there:

• documents confirming the death of a soldier and the circumstances;
• personal documents of the family member claiming the payment;
• documents that confirm family ties with the deceased (marriage certificate, birth certificate of children, a copy of the deceased’s birth certificate, a copy of a court decision or a notarized deed that will confirm the fact that the applicant is dependent on the deceased).

If there are court decisions on guardianship or parental care, they should also be submitted.