Essence of the right to inheritance

The article is focused on studying the category of "the right to inheritance". The author of the paper has used a complex of general scientific and special methods, namely: systematic and structural; analysis; generalization; formal and logical (dogmatic); modeling; logical and analytical, as well as case-law generalization. The purpose of the article is to clarify the essence of the right to inheritance based on the analysis of the current civil legislation's provisions, modern legal doctrine and case-law materials. The author has formulated the conclusion that the studied right is ascendant, basic for all other rights in the field of inheritance. The author has stated arguments in favor of the fact that the right to inherit is not identical to the right to the inheritance. The right to the inheritance, by its essence, belongs to subjective civil rights, arises in a person within inheritance legal relations, and its implementation ensures universal hereditary succession. The person’s acquisition of the right to inherit is determined both by the fact of opening of inheritance and by the type of inheritance, which is determined by the freedom of last will and testament principle. Considering this methodological approach the content of the Art. 1223 of the Civil Code of Ukraine has been formulated, which contains the basic rule that lawful heirs under the last will and testament have the right to inherit. The author has singled out defining features of the right to inherit determined by the specifics of the sphere of inheritance law: 1) such a right arises only in a lawful heir and is inextricably related to his / her personality; 2) is acquired by a lawful heir without the need to perform any legal or factual actions; 3) is of a temporal nature; 4) is of a property nature; 5) is of an absolute nature; 6) this right is complex in its content. The author of the article has emphasized that the content of the right is not identical to its implementation. Thus, the content of the right consists of the potential legal possibilities of a person inherent there, and the implementation of the right involves the actual realization of such possibilities. It has been substantiated that the content of the right to inherit consists of entitlements of lawful heirs to accept the inheritance, not to accept the inheritance or to refuse to accept it. Lawful heirs’ actions aimed at accepting the inheritance or refusing to accept it are forms of exercising the right to inherit. Due to significant differences both in volitional orientation and legal consequences, the author has denied the attribution of not accepting the inheritance to the methods of a lawful heir’s refusal from accepting the inheritance. It has been proved that a person’s right to post-mortuary disposition of own property does not belong to the content of the right to inheritance.

the right to inherit, hereditary succession, hereditary legal relations, sphere of inheritance law, ancestor, lawful heir, inheritance