Situations often occur when a person does not have time to receive the benefits due to him before the moment of death, be it a pension, social benefits or compensation. In such cases, an important question arises: can the heirs claim these funds? Inheritance of benefits that were not received during life is a complex and, at the same time, important aspect of the law that requires detailed clarification. The answers to this question can significantly affect the future well-being of relatives and heirs.
Lawyers of the “Repeshko and Partners” Bar Association comment on how the legislation regulates similar situations and provide practical advice for those who are faced with such a problem.
Military actions on the territory of Ukraine scattered families not only in their native country, but also beyond its borders. Under these conditions, even close family members do not always know what is happening hundreds or thousands of kilometers away with loved ones. Unfortunately, in a situation when a loved one dies, family members are faced with many questions – standard and not so. One of such non-standard issues is the issue of various payments to which the deceased was entitled, but did not receive them.
The Civil Code of Ukraine contains a corresponding article that has a social orientation. It establishes a special procedure for the right to receive certain specified sums for a specified narrow circle of persons for whom, together with the recipient of such sums, they were the main or one of the main sources of livelihood. Moreover, these funds are combined according to their purpose.
Article 1227 of the Civil Code of Ukraine singles out the following payments that belonged to the testator, but were not received by him during his lifetime:
- salary;
- pension;
- scholarship;
- alimony;
- assistance in connection with temporary incapacity;
- compensation in connection with mutilation or other health damage;
- other social benefits.
As we can see, the list of social benefits is not exhaustive, and therefore it includes all social benefits provided for by current legislation.
Other social benefits, for example, include:
- unemployment benefit, including its one-time payment for the organization of entrepreneurial activity by the unemployed. At the same time, in accordance with Art. 37 of the Law of Ukraine “On Mandatory State Social Insurance in Case of Unemployment”, the sums of financial support in case of unemployment, which belong to the unemployed person in accordance with this Law and remained unpaid due to his death, are paid to disabled persons who were dependent on the deceased or had the right to receive maintenance from him on the day of his death.
Such disabled persons are:
– children who have not reached the age of 18, pupils and students (cadets, trainees, interns) of full-time education – until the end of their studies, but not more than until they reach the age of 23;
– one of the parents or the spouse (husband) of the deceased or another family member, if he does not work and takes care of the children, brothers, sisters or grandchildren of the deceased who have not reached the age of 8;
– minor children for whose support the deceased paid or was obliged to pay alimony.
- a one-time monetary award to women who have been awarded the honorary title of “Heroine Mother” of Ukraine in the amount of ten times the subsistence minimum established for able-bodied persons;
- temporary disability assistance, including care for a sick child;
- assistance during pregnancy and childbirth;
- payment for treatment in the rehabilitation departments of the sanatorium-resort facility after suffered illnesses and injuries;
- monetary compensation for unused vacations, as well as additional vacations for employees who have children or an adult child disabled from childhood of subgroup A of group I.
But it is necessary to remember one main point – in Art. 1227 of the Civil Code determines the fate of those payments to which the right arose during the life of the testator. And therefore, the right to recalculate such sums, or the right to demand the appointment of another payment, to which the testator had during his lifetime, but did not use his right for any reason, does not pass to the family members.
Therefore, it is impossible to claim what the deceased person did not claim during his lifetime for any reason. We are talking only about assigned but not received payments. In accordance with the requirements of civil legislation, it is possible to receive only assigned payments, and the right to assign and pay social payments is not part of the inheritance.
Thus, it is not even possible to apply to the court with a claim for the appointment and payment, for example, of a pension for which a person did not apply or did not have time to apply during his lifetime. As an example: a woman is retiring, but the visit to the pension fund was postponed due to a serious illness for three months from the date on which she was entitled to receive a pension, and then the woman unfortunately died. In this case, the pension was not assigned to the woman, although for good reasons, and her family members do not have the right to demand the appointment and payment of a pension after her death.
Cases when and to whom the specified amounts belong
It should be noted that there are two cases when and to whom the specified amounts belong:
- if there are family members who have decided to use their right to receive social benefits due to the testator, they go to them;
- in the absence of the testator’s family members, they are included in the general composition of the inheritance.
It is clear that state bodies or employers do not always have a desire to give what a person did not have time to receive during his lifetime, and try in any way to obstruct the receipt, demanding to provide documents that in this case cannot be provided. In order to receive these funds, you must clearly remember the following points.
In the case of transfer of social benefits due to the testator to the testator’s family members, the corresponding relationship is not hereditary, therefore the rules of inheritance law do not apply at all. In such a situation, the right to claim from family members is regulated not by the norms of the Central Committee of Ukraine regarding inheritance legal relations, but by other norms. It can be said that the law provides for the preferential right of the deceased’s family members over the latter’s heirs to receive social benefits that belonged to the testator, but were not received by him during his lifetime.
It should be remembered that family members who receive social benefits due to the testator are not listed in the law as heirs. This is explained by the fact that the deceased’s family members may not coincide with the circle of heirs who will inherit the property and rights available to the testator at the time of death. So, for example, the heirs can be the parents and children of the deceased, and he could live in the same family for many years with a woman as husband and wife without registering the marriage.
Here we come to the main question. In Art. 1227 of the Civil Code of Ukraine does not specify who exactly belongs to the testator’s family members. This issue is very relevant, because in the legislation of Ukraine there is no single approach regarding the classification of certain persons as family members and a single term clearly defined by law or a defined circle of persons. Usually, this concept is considered in terms of housing, family relations, as well as social security relations.
Thus, according to the decision of the Constitutional Court of Ukraine in the case of the official interpretation of the term “family member”, there is an objective difference in its meaning depending on the branch of legislation. Given the absence of a special rule in the Central Committee that would define family members, the provisions of Part 2 of Article 3 of the Family Code of Ukraine, according to which a family consists of persons who live together, are connected by common life, have mutual rights and obligations. Therefore, the criteria for classification as a family member are the following precisely in their totality, and not in the presence of any separate criteria:
- joint residence (confirmed by registration of persons at the same address or by an act approved by a deputy of the local community with the participation of witnesses of actual residence at this address without registration);
- are connected by common life and run a joint economy;
- have mutual rights and obligations.
So, for example, a brother and sister live together, but the brother has children. In the event of the brother’s death, the heirs by law will be the children, as the first line of persons who are called to inherit, but the sister will have the right to receive payments in accordance with Art. 1227 of the Central Committee of Ukraine.
Since this is a special procedure for receiving the specified payments, the receipt of the specified amounts does not follow the general rule as for receiving other inherited property. Receipt of salary, pension, stipend, alimony, other social benefits that belonged to the testator is carried out without the participation of a notary, without applying to a notary, without obtaining a certificate of the right to inheritance by law. It is possible to receive the specified payments by contacting the deceased person’s family members directly to the bodies or persons obliged to make a certain payment. Once again, we emphasize that in this case it is not necessary to obtain certificates of the right to inheritance from a notary.
What to do if there are several family members?
Another relevant question is what to do if there are several family members? The law does not contain a provision on dividing the amounts of social benefits due to the testator in the presence of several family members. Some current legislation provides for the division of such sums equally among the deceased’s family members. In our opinion, based on the context of Art. 1227 of the Civil Code of Ukraine, the sums of wages, pensions, stipends, alimony, other social benefits that belonged to the testator, but were not received by him during his lifetime, are divided equally among all members of the testator’s family. In the event of a dispute regarding the distribution of the specified payments between family members, the dispute will be considered in court. Here it is already necessary to be cautious to the administration of the enterprise or institution where the deceased person worked or to the employees of the state body and to identify as much as possible the circle of people who are members of the family of the deceased, in order to avoid legal delays and correctly distribute and make payments.
In what period is it possible or necessary for family members to apply for the prescribed payments, taking into account the fact that their receipt is not a hereditary legal relationship
But now the most pressing question is – in what time frame is it possible or necessary for family members to apply for the stipulated payments, taking into account the fact that their receipt is not a hereditary legal relationship? The Civil Code of Ukraine does not specify the terms during which family members must receive social benefits due to the testator. Some legislative acts relating to certain types of payments provide for different deadlines for applying for their receipt. Yes, the term of six months from the day of the opening of the inheritance is provided by Part 2 of Art. 52 of the Law of Ukraine “On Mandatory State Pension Insurance”, for a period not later than six months after death is specified in Part 3 of Art. 61 of the Law of Ukraine “On pension provision of persons released from military service and certain other persons”, Part 3 of Art. 91 of the Law of Ukraine “On pension provision”, for three years it is specified in some acts that regulate payments to military personnel.
However, since the legislation generally specifies a period of six months, we advise you to adhere to it – six months after the opening of the inheritance, i.e. after the death of the testator. The specified period is also connected with the fact that in the absence of family members of the deceased person, the payments will go to the general composition of the inheritance of that line of heirs, which is called for acceptance or to the heirs according to the will. With the expiration of six months, the heirs under the law or under the will already have the right to receive a certificate of the right to inheritance and be full owners of the inherited property.
It should also be taken into account that due to military operations in the country, it is not always possible to establish the exact date of a person’s death. The date of death of a citizen declared dead by a court decision is the day this decision enters into legal force, and it is this day that is indicated in the death certificate.
In the case of declaring a natural person dead, who went missing under circumstances that threatened him with death or give reason to assume his death from a certain accident, as well as in connection with military operations, the court has the right to recognize the day of death of this natural person as the day of his probable death, but this issue is considered in each specific situation, taking into account the available evidence and its weight.
This nuance must be remembered in the case of military personnel, as well as persons who died in temporarily occupied territories.
