When it comes to inheritance, the question of proving family ties always arises. However, the process of establishing the fact of family relations can be quite complicated and require clear legal documentation. Each inheritance case has its own nuances, and even with clearly written wills or contracts, confirming family ties can become an obstacle on the way to receiving an inheritance.
This issue becomes even more acute when family ties are not obvious or for some reason are not documented. Depending on the situation, you may need to collect evidence, testify from relatives, have expert opinions, and even go to court to legally assert your rights. In this context, it is important to understand which documents can serve as evidence, which legal procedures must be followed, and how to avoid possible mistakes that could affect the outcome of the case.
Lawyers of the “Repeshko and Partners” Bar Association commented on the legal aspects of establishing the fact of family relations for inheritance, and also provided practical advice to facilitate this process.
One should marry an orphan, said one famous movie character, but in our opinion, he was categorically wrong. Usually, citizens live carelessly for themselves until one of their relatives dies. And if with a closer circle of relatives everything is more or less known and stable, but about more distant relatives – aunt, aunt’s aunt, great-aunt’s uncle and others, it is only known that they are and prove to be distant relatives. This happens right up to the moment when it turns out that after the deceased aunt there is only one relative – a great-nephew, and the aunt has an apartment in Kyiv as an inheritance. And all that needs to be done in order to get this apartment for the great-nephew is to confirm the family ties with the deceased aunt, whom he never saw in his life. However, similar cases are not isolated even for closer relatives, when it is not possible to prove the “daughter-father” or “daughter-mother” kinship. It’s like in the famous Kalush song:
“It hurt when I saw my native lighthouse in the distance
And you want to swim across the sea to him, but there is no way.”
These lines best reproduce the situation when there are some relatives and there is something from relatives, but there are no documents that would confirm family relations.
What to do to get an inheritance and to what extent it is possible
There is no established concept of “family relations” at the legislative level. None of the existing laws or codes contain an explanation as to who are the persons connected by family relations and does not contain an exhaustive list of the specified persons. Only part 2 ct. 9 of the Family Code of Ukraine states that persons living in the same family, as well as by marriage, which are not covered by the Civil Code of Ukraine, can cover their family (single) relationships a contract, which must be concluded in written form.
In addition, the Civil Code of Ukraine states:
“Fifthly, other relatives of the testator up to the sixth degree of kinship have the right to inheritance by law, and relatives of a closer degree of kinship exclude from the right of inheritance relatives of a further degree of kinship. The degree of kinship is determined by the number of births separating the relative from the testator. The birth of the testator himself is not included in this number.
The testator’s grandchildren and great-grandchildren inherit the share of the inheritance that would have belonged to their mother, father, grandmother, and grandfather by law if they had been alive at the time the inheritance was opened.
Great-grandparents inherit the share of the inheritance that would have belonged to their children (the testator’s grandparents) if they had been alive at the time the inheritance was opened.
The testator’s nephews inherit the share of the inheritance that would have belonged by law to their mother, father (testator’s sister, brother) if they had been alive at the time the inheritance was opened.
Cousins of the testator inherit the share of the inheritance that would have belonged to their mother, father (aunt, uncle of the testator) if they were alive at the time of the opening of the inheritance.
Therefore, based on these provisions, not only parents, children, nephews and spouses are persons who are connected by family relations. For the purposes of legal relations, more distant relatives are also considered relatives, but to prove this, the main thing is to have relevant official documents that would confirm the entire family connection (genealogical tree), including the female part of the family, which changed surnames after marriage. This, as they say, is mission impossible not only in relation to more distant relatives.
Sometimes Khrystyna’s daughter cannot prove that the deceased Maria Ivanovna is her mother, and all because she lost Khrystyna’s birth certificate, who is fifty years old, and there is no way to get a duplicate, because at one time she was born on the territory of Russia Federation, or Belarus. And if it was possible to obtain some documents from the territory of the listed states before the start of hostilities on the territory of Ukraine, although it was difficult and took a very long time, now it is completely impossible. Therefore, Khrystyna does not have a document that could confirm that Maria Ivanovna is her mother. Only the marriage certificate, where the maiden name coincides with the surname of Maria Ivanovna, and how many people do we have with the same surnames? And if Maria Ivanovna married again after Khrystyna’s father, or more than once?
In such a case, a court procedure will come to the rescue – establishing the fact of family relations. It is usually necessary when:
- Some of the documents confirming family ties have been lost.
- The documents are available, but there are discrepancies in the spelling of the first name, patronymic and surname in the documents.
The establishment of the fact of family relations is carried out by the court in the order of a separate proceeding, and the application for the establishment of the fact of family relations is submitted by the applicant to the district, district in the city, city or city-district court at the place of his residence. At the same time, the jurisdiction of cases based on the application of a citizen of Ukraine who lives outside its borders to establish the fact of family relations is determined at his request by a decision of a judge of the Supreme Court.
Note that this procedure is not simple and requires careful preparation. It is necessary to find as many documents as possible. At the same time, it is extremely necessary to apply to civil status registration authorities or archives in an effort to obtain copies of birth/marriage records of relatives (as these legal actions at one time took place on the territory of Ukraine). Some information on the annexed territories is currently available in the civil registry offices, please contact for clarification.
In addition to existing documents and certificates about the impossibility of obtaining another part of documents, acts and certificates of local authorities will also be useful. Yes, usually in the certificates about the composition of the family, it is indicated who belongs to whom. If there will be several such references for different periods of time – that’s great. Photographs, witnesses, personal correspondence, autobiographies written at one time to the personnel department, records about relatives from medical records, who to call – all this can serve as evidence of family relations. At the same time, it is better to take both neighbors and relatives as witnesses, so that the court understands their objectivity.
Who can be applicants in the case of establishing the fact of family relations
Applicants in the case of establishing the fact of family relations can be:
- heirs of a deceased person who have the right to inheritance and for whom certain legal consequences should arise in connection with the establishment of the fact of family relations;
- persons who are entitled to a pension in connection with the loss of a breadwinner and to whom the pension fund authorities refused to grant it due to the lack of evidence confirming family relations;
- other persons, if the establishment of such a fact leads to legal consequences for them. This point may include such cases when establishing the fact of family relations is necessary to obtain access to relatives in hospitals, including in intensive care, when concluding a gift agreement between relatives of the first degree of consanguinity in order not to pay taxes and other cases.
The judicial process requires the mandatory presence of an interested person – the body to which you will go to implement the court decision, which will establish a family relationship. For this category of cases, these are usually private notaries or state notary offices, the Main Directorate of the Pension Fund in the relevant region, and others. At the same time, it is important to remember: before going to court, it is necessary to contact the listed bodies or persons and obtain a written notice, either in the appointed pensions, or in the registration of inheritance precisely on the grounds that there are no documents to confirm family relations.
In our practice, many questions arise regarding the so-called “civil marriage”. It should be noted that there is no such concept in the legislation at all. One very important point is that the courts never establish the fact that Khrystyna and Petro, who did not register their marriage at the RACS office, are husband and wife in the sense of a full-fledged marriage. That is, it is not possible to establish the fact of marriage between persons who were not registered by the RACSU body as husband and wife! Courts can establish the fact of marriage registration, if it has taken place.
Most often, this issue arises in connection with receiving an inheritance, when a man and a woman have actually lived in marriage for many years, but without its registration and after the death of one of the spouses, the other wishes to receive or expects to receive the inheritance as a first-line heir, which includes spouses, parents and children Unfortunately, this is absolutely not possible. Cohabitants from a civil marriage as heirs pass through the fourth round. According to the legislation, persons who have lived with the testator in the same family for at least five years before the opening of the inheritance have the fourth right to inheritance by law. That is, they will inherit only if there are no first three lines of inheritance: parents, children, grandchildren, grandfather, grandmother, brother, sister and others. At the same time, it will be necessary to prove such cohabitation not only with joint photographs and testimony of witnesses. The court needs other more weighty evidence, namely written evidence – the same acts, certificates, autobiographies, etc.
The court fee for submitting an application to establish a fact in 2024 is UAH 605.60. The decision of the court itself will sound as follows: “Petrenko Khrystyna Dmitrivna, born on December 12, 1947, is the daughter of Zavorotnyuk Maria Ivanivna, who died on March 26, 2024, or “Mykola Pavlovich the Great, born on March 8, 1984, is the nephew of Natalya Volodymyrivna, who died on 20 May 2023”.
Establishing the fact of family relations is also possible when the documents are not lost, but there are discrepancies in spelling, for example “Kovalenko – Kovalenko”. In such cases, an expert opinion can serve as evidence in the case. In Ukraine, there is the Ukrainian Bureau of Linguistic Examinations of the National Academy of Sciences of Ukraine, which is located in Kyiv, and which is directly engaged in providing expert opinions on the identity of records of surnames, names and other proper names based on the analysis of documents (provided in copies) containing these records. In the example of “Kovalenko – Kovalenko”, the bureau gives positive conclusions, which are grounds for the court to satisfy the application. But still, a mandatory condition before going to court is a preliminary application to the body for registration of civil status acts with a statement to correct the discrepancy in spelling in the act record. In 99% of cases, the RATS body will not fix anything, but you need to have any written answer from them on this matter in hand to apply to the court.
From the content of the explanations set out in paragraph 1 of the Resolution of the Plenum of the Supreme Court of Ukraine dated March 31, 1995 No. 5 “On judicial practice in cases of establishing facts of legal significance”, it is clear that the court considers cases of establishing facts in a separate proceeding facts, if: according to the law, such facts give rise to legal consequences, that is, the emergence, change or termination of personal or property rights of citizens depends on them; current legislation does not provide for another procedure for their establishment; the applicant has no other opportunity to receive or restore a lost or destroyed document that certifies a fact of legal significance; a statement of fact does not reveal a legal dispute; the establishment of the fact is not connected with the subsequent resolution of the rights dispute.
According to the letter of the Armed Forces of Ukraine dated January 1, 2012 “On the judicial practice of consideration of cases on the establishment of facts of legal significance”, in the event that the institutions that issued these documents cannot correct the errors made in them, citizens have the right to appeal to court
According to the explanation of paragraph 7 of the Resolution of the Plenum of the Supreme Court of Ukraine dated 31.03.1995 No. 5 “On judicial practice in cases of establishing facts of legal significance”, the court has the right to consider cases of establishing family relations, when this fact directly gives rise to legal consequences, for example, if confirmation of such a fact is necessary for the applicant to obtain a certificate of the right to inheritance from the notarial authorities.
The main thing that emerges from the documents we have listed is that you need to communicate with your relatives, even the most distant ones, because they may eventually become heirs. It is also necessary to know that in the described cases the problem is best solved by the will. So, drawing up a will is the only way to avoid litigation, costs of money and time in the future. If Maria Ivanovna had made a will for her daughter Khrystyna during her lifetime, the latter would not have had to go to court and prove that Maria Ivanovna was her mother. A will can be made by anyone and for anyone’s benefit. At the same time, the notary does not even require the presence of legal documents for the inherited property – the notary who will process the inheritance must deal with this – find out what is and what is not part of the inherited property. This is exactly the case when a couple of thousand hryvnias will radically solve the problem. Remember the proverb: “a penny saves a hryvnia.”
